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Commissioner of Sales Tax, U. P., Lucknow Vs. Super Cotton Bowl Refilling Works | was maintainable by the decision of the High Court. Here in the instant case the right of appeal has been given under the Act not to any ordinary court of the country under the Code of civil Procedure but to the courts enumerated under the Sales Tax Act and the revision is contemplated under the provisions of the Sales Tax Act. Final in the section means that it is final and under the Act subject of the limited procedure contemplated under the Act. The intention of the legislature, in our opinion, in the amended scheme of the Act is clear and manifest and meaningful and the scheme of the Act is to regulate the determination of the question as to the assessability and liability and question in connection thereto. The observation of Lord Lord Loreburn, L.C. were referred to in South Asia Industries Pvt. Ltd. v. S. B. Sarup Singh ((1965) 2 SCR 756 : AIR 1965 SC 1442 ), where this Court observed at page 766 of the report that the expression final prima facie meant that an order passed on appeal under the Act was conclusive and no further appeal lay. A right to revision under the Act is a right given by the Act. In this connection, observation in Jetha Bai and Sons, Jew Town v. Sunderdas Rathenai ((1988) 1 SCC 722 ) may be relied on. 10. We have noted that Section 11 of the Act after the amendment stipulated that any person being aggrieved by an order made under sub-section (4) or sub-section (5) of Section 10, other than an order under sub-section (2) of that section summarily disposing of the appeal, or by an order passed under Section 22 by the Tribunal, may apply for revision. Where an appeal is not disposed of summarily but by a decision, as in this case, and where the appeal is contemplated in such situation, to be heard by a Bench of three judges, in our opinion, if any further revision would have laid from the decision of the Tribunal then such decision of the Commissioner would not have been made final by sub-section (5) of Section 35. It may be mentioned that the Tribunal after exhaustively considering the contentions of the case allowed the appeal in part and the order of the Commissioner of Sales Tax was modified by holding that the process of repairing refilling of the cotton bowls of the customers did not amount to manufacture as defined in section 2(e-1) of the Act, as amended by the U.P. Sales Tax (Amendment and Validation) Act, 1985 (U.P. Act 38 1975) with effect from February 2, 1985. In the Scheme of the Act, in our opinion, it was enjoined that such an appeal is to be heard by a Bench of three judges. Where it was provided that the Tribunal, in opinion, it would be incorrect to contemplate that in such a situation a further revision under Section 11 lay to the High Court. Revision to the High Court in special cases under Section 11 is contemplated on the ground that the case involved a question of law. It may be mentioned that the High Court had mentioned that under sub-clause (5) of Section 35 of the Act prior to its amendment that an appeal used to lie to the High Court against an order of the Commissioner of Sales Tax. By the aforesaid amendment brought forward by the U. P. Act 12 of 1979 under clause (5) of Section 35 the words High Court have been deleted and substituted by the word Tribunal. It appears that the High Court was right, therefore, in holding that an appeal to the Tribunal against an order of the Commissioner lies. So far as the appeal before the Tribunal against the order passed under Section 35 is concerned, special treatment has been provided for by the legislature. The Tribunal has come in place if the High Court in hearing the appeal. In such a situation to contemplate when the language of the section envisages that the order of the Commissioner would be final, subject to an appeal to the Tribunal that a further revision lay to the High Court would be unwarranted. As mentioned here before, we have to find out the intention of the legislature in such a situation. The intention of the legislature is a slippery phase as observed in Aron Salomon v. A. Salmon and Company Ltd. (1897 AC 22, 38), see also observation in Lord Howard De Walden v. IRC ((1948) 2 All ER 825) In such cases it is better to find out the intention of the legislature from the words used by the natural meaning of the words and the spirit and reason of the law. See Cross on Statutory Interpretation, 2nd edn., page 21. 11. Having regard to the scheme manifested from the amendment, that is to say, to make the Commissioners decision final, subject to an appeal to the Tribunal where the Tribunal is enjoined to hear such an appeal by Bench of three members and where revision is provided only in special cases, in our opinion, it would be improper to interpret the spirit and reason of that law in such a way as to enjoin that a further revision lay to the High Court under Section 11 of the Act. In our opinion, therefore, the High Court right that no further revision in such situation lies to the High Court. This, however, does not eliminate the correction by the High Court. In an appropriate case by exercise of a writ of certiorari under Article 226 of the Constitution it exercises superintendence over all Courts and tribunals throughout the territory. See in this connection Re Gilmores Application ((1957) 1 All ER 796). We are not concerned with that situation in these appeals. In that view of the matter it appears to us that the High Court is right insofar as it held that no revision lay to the High Court. | 0[ds]4. Shri Manchanda for the appellants and Shri Raja Ram Agarwal for the respondents both submitted that the judgment under appeal is not correct though for different reasons. It is necessary to refer to the scheme of the Act and the amendments from time to time effected therein. Broadly speaking, the amendment is made by the sales Tax Officer in terms of Section 3 and other allied sections. Section 9 of the Act deals with appeals and provides that any dealer or other person aggrieved by the order made by the Assessing Authority other than an order mentioned in Section 10-A, may, within 30 days from the date of the service of the copy of the order or appeal to such authority, as may be prescribed, request the appellate authority in writing for summary disposal of his appeal. The other consequential provisions of law need not at the present moment be examined in detail. Section 10 provides for Sales Tax Tribunal. The section was submitted at first by U.P. Act 12 of 1979 and thereafter amended by U.P. Act 22 1984. After the substitution by the U.P. Act 12 of 1979 the Act has provided that there shall be a Sales Tax Tribunal consisting of a President and such other members as the State Government may from time to time been it necessary to appoint from amongst persons who have been, or who are qualified to be judges of the High Court and persons who hold or have held a post not below the rank of Deputy Commissioner of Sales Tax provided that when the Tribunal consisted of one or more persons who have been judges of a High Court then he or one of them he or one of them should be appointed the President. Sub-Section (5) of Section 10 authorities the Tribunal, as the case may be, to confirm, cancel or vary such order. Sub-Section (2) of Section 10 stipulates that any person aggrieved by an order passed by an appellate authority under Section 9 or by the revising authority under Section 10-B or by a decision given by the Commissioner of Sales Tax under Section 35 may, within six months from the date of service of the copy of such order or decision on him, prefer an appeal to the Tribunal. Sub-Section (10)(a) of Section 10 provides that an appeal against the order of the Appellate Authority under Section 9 shall be heard and disposed of, inter alia, (i) by a Bench of one member, where such order is passed by an Assistant commissioner (Judicial), the amount of the tax, fee or penalty in dispute does not exceed five thousand rupees; and (ii) by a Bench of two members, in any other case. An appeal against the order passed under Section 10-B should be heard and disposed of by a Bench of two members. An appeal against an order passed under Section 35 shall be heard and disposed of by a Bench of three members. The President has the power to direct an appeal to be heard and decided by a larger Bench and transfer an appeal from one Bench to another6. As will be apparent from the aforesaid sub-section (10) (c) an appeal against an order passed or a decision given under Section 35 shall be filed before the President and shall be heard and disposed of by a Bench of three members. So far as revision is concerned, this was the subject matter of Section 11 of the Act. The U.P. Sales tax Act of 1948 underwent an amendment in 1984 so far as revision is concerned and as it stands today and so far as it is material for the present purpose, is as follows11. Revision by High Court in special cases. - (1) Any person aggrieved by an order made under sub-section (4) or sub-section (5) of Section 10, other than an order under sub-section (2) of that section summarily disposing of the appeal, or by an order passed under Section 22 by the Tribunal may, within ninety days from the date of service of such order, apply to the High Court for revision of such order on the ground that the case involves any question of lawProvided that, where such order was served on the person concerned at any time before the date of commencement of this section, as substituted by the Uttar Pradesh Taxation Laws (Amendment and Validation) Act, 1978) Act, (hereinafter in this section referred to as the said date), and the period of one hundred and twenty days for making the application as referred to in this sub-section, as it existed before the said date, had not expired on the said date the person aggrieved may apply for revision within sixty from the said dateThe other sub-sections are not relevant for the present purpose7. Section 10-A deals with orders against which no appeal or revision lies and Section 10-B stands for revision by the Commissioner of Sales Tax. Section 11, as mentioned hereinbefore, stands for revision by the High Court and has been amended from time to time. In the aforesaid background the question posed in these appeals will have to be examined in the light of the decision of the High Court. The High Court in its judgment under appeals after analysing the provisions of Section 35 observed that the Commissioner entered into the determination of the disputed questions. Sub-clause (2) of Section 35 of the Act, according to the High Court, enjoins on the Commissioner to decide the questions referred to him as he deems fir after giving the applicant an opportunity of being heard. Under sub-clause (5) of Section 35 it has been stated that the decision given by the Commissioner of Sales tax shall subject to an appeal to the Tribunal, be final. The High Court while examining the section noticed that when an appeal against the order passed under Section 35 of the Act is before the Tribunal, the appeal is to be heard and disposed of by a Bench of three members, although in regard to other appeals before the Tribunal these can be disposed of even by a single members or by a Bench consisting of two members. The High Court noted that under sub-clause (5) of Section 35 of the Act prior to its amendment brought out by U.P. Act 12 of 1979, an appeal used to lie to the High Court against the order to the Commissioner of sales Tax. By the aforesaid amendment brought out by U. P. Act 12 of 1979 under clause (5) of Section 35 the words High Court have been deleted and substituted by the word Tribunal. The learned Judge of the High Court observed that an appeal before the Tribunal was specially treated by the legislature and it was enjoined that it should be disposed of by a Bench of not less than three members. The learned Judge noted that the Division Bench of the High Court in the case of Indo Lube Refineries v. STO ((1987) 66 STC 145 (All) had taken the view that an order passed by the Commissioner under Section 35 of the Act was an administrative order and in so doing he did not act as a Tribunal8. In this connection reference may be made to the Division Bench decision of the High Court of Allahabad in Indo Lube Refineries ((1987) 66 STC (All). There the petitioner filed a writ petition contending that as the order of the Commissioner of Sales Tax had become final under subsection (5) of Section 35 of the U.P. Sales Tax Act, 1948, it was binding on the revenue as well as the petitioner and it was open to the Sales tax Officer who was inferior in hierarchy to ignore the order of the Commissioner in passing the assessment order. Dismissing the petition, it was held by the High Court that the Sales Tax Act had made a clear distinction between judicial proceedings which had to be conducted and concluded in accordance with Section 7, 9, 10, 10-B, 21 and 35 and the High Court noted that the proceedings under Sections 7 to 10-B were of different character than the one contemplated under Section 35, and it excluded a proceeding pending before a court, or before an assessing authority under amendments 7 or Section 21. It was a type of miscellaneous jurisdiction. It was held, to be exercised only in given circumstances or situations. In respect of proceedings under Section 7, which will take within itself an appeal and revision, the legislature had not made the Commissioner a final arbiter. The Sales Tax Officer or the assessing authority while determining the turnover with a view to assess tax liability acts as a tribunal. Likewise, the appellate authority under Section 9 and the Tribunal under Section 10 of the Act are tribunals. The Commissioner did not act as a tribunal while dealing with application under Section 35. The nature of his jurisdiction is administrative according to the High Court. The legislature, according to the High Court, has used the language otherwise than in a proceeding pending before a court or before an assessing authority under Section 7 or 21 deliberately with a view to maintain and preserve the sanctity of the judicial proceedings under the Act. The word final used in sub-section (5) of Section 35 is only with regard to the proceedings contemplated by that section and the order of the Commissioner would be final. But this will not bar the other authorities under the Act from deciding the controversy before it on its own by looking to the evidence and considering the question of law which comes before it. Therefore, the High Court rejected the submission that the order of the Commissioner of Sales Tax is binding in the assessment proceedings and proceedings have to be decided in accordance with the same9. It is difficult to accept the position that under Section 35 which empowers the Commissioner to determine disputed questions and the Commissioner under sub-section (2) after giving the parties opportunity of being, decides a question, his order can be called to be an administrates order. In our opinion, the very languages of the Section which joins a decision by the Commissioner envisages that the decision is quasi-judicial and cannot be characterised as administrative. Whether that decision will be binding on other party and what will be the effect of the decision of the Commissioner of Sales Tax in pending assessment proceedings is another matter and we are concerned in these appeals with that question. We are concerned with the question whether on the language of the section a revision is entertainable from the decision of the Commissioner which has been subjected to an appeal to the Tribunal. In our opinion, in view of the language used specifically in the absence of a provision that such a revision will maintainable, such revision will not be. Sub-section (5) of Section 35 after the amendment states that the decision of the Commissioner of Sales Tax under this section shall, subject to an appeal to the Tribunal, be final. In view of the language of the section, in our opinion, it cannot contemplate a further revision to the High Court against a decision of the Tribunal. InKydd v. Watch Committee of City of Liverpool (1908 AC 327, 331-32 : (1907) 2 KB, Lord Loreburn, L.C., construing the provisions of Section 11 of the Police Act, 1890 of England which provided an appeal to quarter sessions as to the amount of a constables pension, and also stipulated that the court shall make an order which shall be just and final, observedWhere it says, speaking of such an order, that it is to be final, I think it means is to be an end of the business at quarter sessionsThe Judicial Committee in Maung Ba Thaw v. Ma Pin (LR (1933-34) 61 IA 158 : AIR 1934 PC 81 : 1934 ALJ 402) while dealing with the Provincial Insolvency Act observed that when a right of appeal was given to any of the ordinary courts of the country, the procedure, orders and decrees of that court would be governed by the ordinary rules of the Civil Procedure Code and therefore an appeal to Privy Council was maintainable by the decision of the High Court. Here in the instant case the right of appeal has been given under the Act not to any ordinary court of the country under the Code of civil Procedure but to the courts enumerated under the Sales Tax Act and the revision is contemplated under the provisions of the Sales Tax Act. Final in the section means that it is final and under the Act subject of the limited procedure contemplated under the Act. The intention of the legislature, in our opinion, in the amended scheme of the Act is clear and manifest and meaningful and the scheme of the Act is to regulate the determination of the question as to the assessability and liability and question in connection thereto. The observation of Lord Lord Loreburn, L.C. were referred to in South Asia Industries Pvt. Ltd. v. S. B. Sarup Singh ((1965) 2 SCR 756 : AIR 1965 SC 1442 ), where this Court observed at page 766 of the report that the expression final prima facie meant that an order passed on appeal under the Act was conclusive and no further appeal lay. A right to revision under the Act is a right given by the Act. In this connection, observation in Jetha Bai and Sons, Jew Town v. Sunderdas Rathenai ((1988) 1 SCC 722 ) may be relied on10. We have noted that Section 11 of the Act after the amendment stipulated that any person being aggrieved by an order made under sub-section (4) or sub-section (5) of Section 10, other than an order under sub-section (2) of that section summarily disposing of the appeal, or by an order passed under Section 22 by the Tribunal, may apply for revision. Where an appeal is not disposed of summarily but by a decision, as in this case, and where the appeal is contemplated in such situation, to be heard by a Bench of three judges, in our opinion, if any further revision would have laid from the decision of the Tribunal then such decision of the Commissioner would not have been made final by sub-section (5) of Section 35. It may be mentioned that the Tribunal after exhaustively considering the contentions of the case allowed the appeal in part and the order of the Commissioner of Sales Tax was modified by holding that the process of repairing refilling of the cotton bowls of the customers did not amount to manufacture as defined in section 2(e-1) of the Act, as amended by the U.P. Sales Tax (Amendment and Validation) Act, 1985 (U.P. Act 38 1975) with effect from February 2, 1985. In the Scheme of the Act, in our opinion, it was enjoined that such an appeal is to be heard by a Bench of three judges. Where it was provided that the Tribunal, in opinion, it would be incorrect to contemplate that in such a situation a further revision under Section 11 lay to the High Court. Revision to the High Court in special cases under Section 11 is contemplated on the ground that the case involved a question of law. It may be mentioned that the High Court had mentioned that under sub-clause (5) of Section 35 of the Act prior to its amendment that an appeal used to lie to the High Court against an order of the Commissioner of Sales Tax. By the aforesaid amendment brought forward by the U. P. Act 12 of 1979 under clause (5) of Section 35 the words High Court have been deleted and substituted by the word Tribunal. It appears that the High Court was right, therefore, in holding that an appeal to the Tribunal against an order of the Commissioner lies. So far as the appeal before the Tribunal against the order passed under Section 35 is concerned, special treatment has been provided for by the legislature. The Tribunal has come in place if the High Court in hearing the appeal. In such a situation to contemplate when the language of the section envisages that the order of the Commissioner would be final, subject to an appeal to the Tribunal that a further revision lay to the High Court would be unwarranted. As mentioned here before, we have to find out the intention of the legislature in such a situation. The intention of the legislature is a slippery phase as observed inAron Salomon v. A. Salmon and Company Ltd. (1897 AC 22,, see also observation in Lord Howard De Walden v. IRC ((1948) 2 All ER 825) In such cases it is better to find out the intention of the legislature from the words used by the natural meaning of the words and the spirit and reason of the law. See Cross on Statutory Interpretation, 2nd edn., page 2111. Having regard to the scheme manifested from the amendment, that is to say, to make the Commissioners decision final, subject to an appeal to the Tribunal where the Tribunal is enjoined to hear such an appeal by Bench of three members and where revision is provided only in special cases, in our opinion, it would be improper to interpret the spirit and reason of that law in such a way as to enjoin that a further revision lay to the High Court under Section 11 of the Act. In our opinion, therefore, the High Court right that no further revision in such situation lies to the High Court. This, however, does not eliminate the correction by the High Court. In an appropriate case by exercise of a writ of certiorari under Article 226 of the Constitution it exercises superintendence over all Courts and tribunals throughout the territory. See in this connection Re Gilmores Application ((1957) 1 All ER 796). We are not concerned with that situation in these appeals. In that view of the matter it appears to us that the High Court is right insofar as it held that no revision lay to the High Court | 0 | 6,006 | 3,354 | ### Instruction:
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was maintainable by the decision of the High Court. Here in the instant case the right of appeal has been given under the Act not to any ordinary court of the country under the Code of civil Procedure but to the courts enumerated under the Sales Tax Act and the revision is contemplated under the provisions of the Sales Tax Act. Final in the section means that it is final and under the Act subject of the limited procedure contemplated under the Act. The intention of the legislature, in our opinion, in the amended scheme of the Act is clear and manifest and meaningful and the scheme of the Act is to regulate the determination of the question as to the assessability and liability and question in connection thereto. The observation of Lord Lord Loreburn, L.C. were referred to in South Asia Industries Pvt. Ltd. v. S. B. Sarup Singh ((1965) 2 SCR 756 : AIR 1965 SC 1442 ), where this Court observed at page 766 of the report that the expression final prima facie meant that an order passed on appeal under the Act was conclusive and no further appeal lay. A right to revision under the Act is a right given by the Act. In this connection, observation in Jetha Bai and Sons, Jew Town v. Sunderdas Rathenai ((1988) 1 SCC 722 ) may be relied on. 10. We have noted that Section 11 of the Act after the amendment stipulated that any person being aggrieved by an order made under sub-section (4) or sub-section (5) of Section 10, other than an order under sub-section (2) of that section summarily disposing of the appeal, or by an order passed under Section 22 by the Tribunal, may apply for revision. Where an appeal is not disposed of summarily but by a decision, as in this case, and where the appeal is contemplated in such situation, to be heard by a Bench of three judges, in our opinion, if any further revision would have laid from the decision of the Tribunal then such decision of the Commissioner would not have been made final by sub-section (5) of Section 35. It may be mentioned that the Tribunal after exhaustively considering the contentions of the case allowed the appeal in part and the order of the Commissioner of Sales Tax was modified by holding that the process of repairing refilling of the cotton bowls of the customers did not amount to manufacture as defined in section 2(e-1) of the Act, as amended by the U.P. Sales Tax (Amendment and Validation) Act, 1985 (U.P. Act 38 1975) with effect from February 2, 1985. In the Scheme of the Act, in our opinion, it was enjoined that such an appeal is to be heard by a Bench of three judges. Where it was provided that the Tribunal, in opinion, it would be incorrect to contemplate that in such a situation a further revision under Section 11 lay to the High Court. Revision to the High Court in special cases under Section 11 is contemplated on the ground that the case involved a question of law. It may be mentioned that the High Court had mentioned that under sub-clause (5) of Section 35 of the Act prior to its amendment that an appeal used to lie to the High Court against an order of the Commissioner of Sales Tax. By the aforesaid amendment brought forward by the U. P. Act 12 of 1979 under clause (5) of Section 35 the words High Court have been deleted and substituted by the word Tribunal. It appears that the High Court was right, therefore, in holding that an appeal to the Tribunal against an order of the Commissioner lies. So far as the appeal before the Tribunal against the order passed under Section 35 is concerned, special treatment has been provided for by the legislature. The Tribunal has come in place if the High Court in hearing the appeal. In such a situation to contemplate when the language of the section envisages that the order of the Commissioner would be final, subject to an appeal to the Tribunal that a further revision lay to the High Court would be unwarranted. As mentioned here before, we have to find out the intention of the legislature in such a situation. The intention of the legislature is a slippery phase as observed in Aron Salomon v. A. Salmon and Company Ltd. (1897 AC 22, 38), see also observation in Lord Howard De Walden v. IRC ((1948) 2 All ER 825) In such cases it is better to find out the intention of the legislature from the words used by the natural meaning of the words and the spirit and reason of the law. See Cross on Statutory Interpretation, 2nd edn., page 21. 11. Having regard to the scheme manifested from the amendment, that is to say, to make the Commissioners decision final, subject to an appeal to the Tribunal where the Tribunal is enjoined to hear such an appeal by Bench of three members and where revision is provided only in special cases, in our opinion, it would be improper to interpret the spirit and reason of that law in such a way as to enjoin that a further revision lay to the High Court under Section 11 of the Act. In our opinion, therefore, the High Court right that no further revision in such situation lies to the High Court. This, however, does not eliminate the correction by the High Court. In an appropriate case by exercise of a writ of certiorari under Article 226 of the Constitution it exercises superintendence over all Courts and tribunals throughout the territory. See in this connection Re Gilmores Application ((1957) 1 All ER 796). We are not concerned with that situation in these appeals. In that view of the matter it appears to us that the High Court is right insofar as it held that no revision lay to the High Court.
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appeal to Privy Council was maintainable by the decision of the High Court. Here in the instant case the right of appeal has been given under the Act not to any ordinary court of the country under the Code of civil Procedure but to the courts enumerated under the Sales Tax Act and the revision is contemplated under the provisions of the Sales Tax Act. Final in the section means that it is final and under the Act subject of the limited procedure contemplated under the Act. The intention of the legislature, in our opinion, in the amended scheme of the Act is clear and manifest and meaningful and the scheme of the Act is to regulate the determination of the question as to the assessability and liability and question in connection thereto. The observation of Lord Lord Loreburn, L.C. were referred to in South Asia Industries Pvt. Ltd. v. S. B. Sarup Singh ((1965) 2 SCR 756 : AIR 1965 SC 1442 ), where this Court observed at page 766 of the report that the expression final prima facie meant that an order passed on appeal under the Act was conclusive and no further appeal lay. A right to revision under the Act is a right given by the Act. In this connection, observation in Jetha Bai and Sons, Jew Town v. Sunderdas Rathenai ((1988) 1 SCC 722 ) may be relied on10. We have noted that Section 11 of the Act after the amendment stipulated that any person being aggrieved by an order made under sub-section (4) or sub-section (5) of Section 10, other than an order under sub-section (2) of that section summarily disposing of the appeal, or by an order passed under Section 22 by the Tribunal, may apply for revision. Where an appeal is not disposed of summarily but by a decision, as in this case, and where the appeal is contemplated in such situation, to be heard by a Bench of three judges, in our opinion, if any further revision would have laid from the decision of the Tribunal then such decision of the Commissioner would not have been made final by sub-section (5) of Section 35. It may be mentioned that the Tribunal after exhaustively considering the contentions of the case allowed the appeal in part and the order of the Commissioner of Sales Tax was modified by holding that the process of repairing refilling of the cotton bowls of the customers did not amount to manufacture as defined in section 2(e-1) of the Act, as amended by the U.P. Sales Tax (Amendment and Validation) Act, 1985 (U.P. Act 38 1975) with effect from February 2, 1985. In the Scheme of the Act, in our opinion, it was enjoined that such an appeal is to be heard by a Bench of three judges. Where it was provided that the Tribunal, in opinion, it would be incorrect to contemplate that in such a situation a further revision under Section 11 lay to the High Court. Revision to the High Court in special cases under Section 11 is contemplated on the ground that the case involved a question of law. It may be mentioned that the High Court had mentioned that under sub-clause (5) of Section 35 of the Act prior to its amendment that an appeal used to lie to the High Court against an order of the Commissioner of Sales Tax. By the aforesaid amendment brought forward by the U. P. Act 12 of 1979 under clause (5) of Section 35 the words High Court have been deleted and substituted by the word Tribunal. It appears that the High Court was right, therefore, in holding that an appeal to the Tribunal against an order of the Commissioner lies. So far as the appeal before the Tribunal against the order passed under Section 35 is concerned, special treatment has been provided for by the legislature. The Tribunal has come in place if the High Court in hearing the appeal. In such a situation to contemplate when the language of the section envisages that the order of the Commissioner would be final, subject to an appeal to the Tribunal that a further revision lay to the High Court would be unwarranted. As mentioned here before, we have to find out the intention of the legislature in such a situation. The intention of the legislature is a slippery phase as observed inAron Salomon v. A. Salmon and Company Ltd. (1897 AC 22,, see also observation in Lord Howard De Walden v. IRC ((1948) 2 All ER 825) In such cases it is better to find out the intention of the legislature from the words used by the natural meaning of the words and the spirit and reason of the law. See Cross on Statutory Interpretation, 2nd edn., page 2111. Having regard to the scheme manifested from the amendment, that is to say, to make the Commissioners decision final, subject to an appeal to the Tribunal where the Tribunal is enjoined to hear such an appeal by Bench of three members and where revision is provided only in special cases, in our opinion, it would be improper to interpret the spirit and reason of that law in such a way as to enjoin that a further revision lay to the High Court under Section 11 of the Act. In our opinion, therefore, the High Court right that no further revision in such situation lies to the High Court. This, however, does not eliminate the correction by the High Court. In an appropriate case by exercise of a writ of certiorari under Article 226 of the Constitution it exercises superintendence over all Courts and tribunals throughout the territory. See in this connection Re Gilmores Application ((1957) 1 All ER 796). We are not concerned with that situation in these appeals. In that view of the matter it appears to us that the High Court is right insofar as it held that no revision lay to the High Court
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Treogi Nath Vs. The Indian Iron & Steel Co. Ltd | suggested that S. 33-C (2) of the Act makes a provision in respect of Labour Courts of the same nature as the provision made by S. 18 (2) of the Bengal, Agra and Assam Civil Courts Act in respect of Subordinate Judges or Munsifs, and since Subordinate Judges and Munsifs can exercise jurisdiction by virtue of S. 13 (1) of that Act to decide civil suits, it should be held that Labour Courts by virtue of their constitution under S. 7 (1) of the Act, get the jurisdiction to decide applications under S. 33-C (2) also, and the specification of Courts mentioned in that sub-section is only for the purpose of deciding which Labour Court should exercise jurisdiction where there may be more than one Labour Court. We do not think that this comparison is correct or justified. Though Civil Courts are constituted under S. 13 of the Bengal, Agra and Assam Civil Courts Act, it has to be remembered that the power of those Courts to take cognizance of civil suits and decide them is conferred by the Code of Civil Procedure. It is not by virtue of their constitution under S. 13 of the Bengal, Agra and Assam Civil Courts Act that the Courts take cognizance of civil suits and decide them.Section 33-C (2), in the matter of applications made by individual workmen, is, therefore, not comparable with S. 13 (2) of the Bengal, Agra and Assam Civil Courts Act, but, in fact, lays down the requirement which must be satisfied before the Labour Court can take cognizance of the matter raised before it by the applications of the workmen. Section 33-C (2) would, thus, servo the purpose in the case of Labour Courts which is served by the provisions of the Code of Civil Procedure relating to cognizance in respect of Civil Courts. S. 33-C (2), by its language, makes it clear that the jurisdiction under that provision is to be exercised only by those particular Courts which are specified in that behalf by the State Government and, in fact, confers jurisdiction on only those Courts and not on all Labour Courts, which may have been constituted under S. 7 (1) of the Act.6. It was also urged by learned counsel before us that we should give a liberal construction to the provisions of S. 33-C (2) so as to ensure that the benefits of that provision are not denied to a workman even if a State Government neglects to specify a Labour Court in that behalf. We do not think that there is any force in this submission. When a provision has been made in S. 83-C (2) for specification of a Labour Court in that behalf by the appropriate Government, it is presumed that that Government will carry out its duty and will make the necessary specification. Even under S. 7 (1) of the Act, the power is granted to a State Government to constitute Labour Courts, and if the State Government neglects to constitute Labour Courts, the provisions of S. 38-C (2) would automatically become ineffective. This would be no ground for giving an interpretation to S. 7 (1) which would do away with the necessity of the Labour Court being constituted by a State Government. It may also be incidentally mentioned that in West Bengal the State Government had made Rules in 1958 under S. 38 of the Act and Rule 74 was as follows :-"74. APPLICATION FOR RECOVERY OF DUES - An application under Section 33-C shall be delivered personally or forwarded by registered post in triplicate to the Secretary to the Government of West Bengal in the Department of Labour or to such officers to whom powers have been delegated under Section 39 of the industrial Disputes Act."This Rule lays down that all applications under S. 33-C are to be delivered to the Secretary to the Government of West Bengal in the Department of Labour, or to such officers to whom powers may have been delegated under S. 39 of the Act.The purpose of the application being sent to the Government is clear. If the application is under S. 33-C (l), the Government is to take action on that application itself and is to realise the money claimed in that application.On the other hand, if the application happens to be under S. 33-C (2), the purpose of delivery of that application to the Secretary to the Government clearly would be that, on that application, the Government would specify the Labour Court which is to deal with that application.It appears that, in some States, the appropriate Government has, by general orders, specified Labour Courts for the purpose of exercising jurisdiction under S. 33-C (2). So far as the Government of West Bengal is concerned, it did not issue any similar general order, and the intention of Rule 74 was that any workman wishing to obtain relief under S. 33-C (2) should apply to the State Government when the Government would specify the Labour Court for the purpose of dealing with that application. This position has been further clarified by a subsequent amendment of Rule 74 under which it is clearly provided that where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the workman concerned may apply to the State Government in the prescribed Form for the specification of a Labour Court for determining the amount of his dues. It is true that this Rule 74 did not in this form exists at the relevant time with which we are concerned in the present case, but we agree with the Bench of the Calcutta High Court that Rule 74, as it stood at that time, was also intended to lay down that a workman claiming relief under Section 33-C (2) must present his application to the State Government, whereupon the State Government would specify the Labour Court which was to deal with it under S. 33-C (2) of the Act. | 1[ds]The language of sub-section (2) of S. 33-C is perfectly clear in laying down that the computation in terms of money of the benefit claimed by a workman is to be made by such Labour Court as may be specified in this behalf by the appropriatewas conceded by counsel for both parties that there was no general or specific order mentioning the Second Labour Court, West Bengal, as the Court specified for purposes of making the determination under Section 33-Care unable to accept this interpretation. The language of S. 33-C (2) itself makes it clear that the appropriate Government has to specify the Labour Court which is to discharge the functions under this sub-section. The use of the expression "specified in this behalf " is significant. The words "in this behalf" must be given their full import and effect.They clearly indicate that there must be a specification by the appropriate Government that a particular Court is to discharge the function under S. 33-C (2) and, thereupon, it is that Court alone which will have jurisdiction to proceed under that provision. The mere fact that a Labour Court has been constituted under S. 7 (1) of the Act for the purpose of adjudication of industrial disputes as well as for performing other functions that may be assigned to it under the Act does not mean that that Court is automatically specified as the Court for the purpose of exercising jurisdiction under S. 33-C (2) of the Act. S. 33-C (2) confers jurisdiction only on those Labour Courts which are specified in this behalf, i. e., such Labour Courts which are specifically designated by the State Government for the purpose of computing the money value of the benefit claimed by a workman.The Second Labour Court, West Bengal, was, in fact, never specified by any order of the State Government as one of those Labour Courts which is to exercise the powers or discharge the functions under S. 33-Cdo not think that this comparison is correct or justified. Though Civil Courts are constituted under S. 13 of the Bengal, Agra and Assam Civil Courts Act, it has to be remembered that the power of those Courts to take cognizance of civil suits and decide them is conferred by theCode of Civil Procedure. It is not by virtue of their constitution under S. 13 of the Bengal, Agra and Assam Civil Courts Act that the Courts take cognizance of civil suits and decide them.Section 33-C (2), in the matter of applications made by individual workmen, is, therefore, not comparable with S. 13 (2) of the Bengal, Agra and Assam Civil Courts Act, but, in fact, lays down the requirement which must be satisfied before the Labour Court can take cognizance of the matter raised before it by the applications of the workmen. Section 33-C (2) would, thus, servo the purpose in the case of Labour Courts which is served by the provisions of theCode of Civil Procedure relating to cognizance in respect of Civil Courts. S. 33-C (2), by its language, makes it clear that the jurisdiction under that provision is to be exercised only by those particular Courts which are specified in that behalf by the State Government and, in fact, confers jurisdiction on only those Courts and not on all Labour Courts, which may have been constituted under S. 7 (1) of thedo not think that there is any force in this submission. When a provision has been made in S. 83-C (2) for specification of a Labour Court in that behalf by the appropriate Government, it is presumed that that Government will carry out its duty and will make the necessary specification. Even under S. 7 (1) of the Act, the power is granted to a State Government to constitute Labour Courts, and if the State Government neglects to constitute Labour Courts, the provisions of S. 38-C (2) would automatically become ineffective. This would be no ground for giving an interpretation to S. 7 (1) which would do away with the necessity of the Labour Court being constituted by a StateRule lays down that all applications under S. 33-C are to be delivered to the Secretary to the Government of West Bengal in the Department of Labour, or to such officers to whom powers may have been delegated under S. 39 of the Act.The purpose of the application being sent to the Government is clear. If the application is under S. 33-C (l), the Government is to take action on that application itself and is to realise the money claimed in that application.On the other hand, if the application happens to be under S. 33-C (2), the purpose of delivery of that application to the Secretary to the Government clearly would be that, on that application, the Government would specify the Labour Court which is to deal with that application.It appears that, in some States, the appropriate Government has, by general orders, specified Labour Courts for the purpose of exercising jurisdiction under S. 33-C (2). So far as the Government of West Bengal is concerned, it did not issue any similar general order, and the intention of Rule 74 was that any workman wishing to obtain relief under S. 33-C (2) should apply to the State Government when the Government would specify the Labour Court for the purpose of dealing with that application. This position has been further clarified by a subsequent amendment of Rule 74 under which it is clearly provided that where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the workman concerned may apply to the State Government in the prescribed Form for the specification of a Labour Court for determining the amount of his dues. It is true that this Rule 74 did not in this form exists at the relevant time with which we are concerned in the present case, but we agree with the Bench of the Calcutta High Court that Rule 74, as it stood at that time, was also intended to lay down that a workman claiming relief under Section 33-C (2) must present his application to the State Government, whereupon the State Government would specify the Labour Court which was to deal with it under S. 33-C (2) of the Act. | 1 | 3,119 | 1,167 | ### 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:
suggested that S. 33-C (2) of the Act makes a provision in respect of Labour Courts of the same nature as the provision made by S. 18 (2) of the Bengal, Agra and Assam Civil Courts Act in respect of Subordinate Judges or Munsifs, and since Subordinate Judges and Munsifs can exercise jurisdiction by virtue of S. 13 (1) of that Act to decide civil suits, it should be held that Labour Courts by virtue of their constitution under S. 7 (1) of the Act, get the jurisdiction to decide applications under S. 33-C (2) also, and the specification of Courts mentioned in that sub-section is only for the purpose of deciding which Labour Court should exercise jurisdiction where there may be more than one Labour Court. We do not think that this comparison is correct or justified. Though Civil Courts are constituted under S. 13 of the Bengal, Agra and Assam Civil Courts Act, it has to be remembered that the power of those Courts to take cognizance of civil suits and decide them is conferred by the Code of Civil Procedure. It is not by virtue of their constitution under S. 13 of the Bengal, Agra and Assam Civil Courts Act that the Courts take cognizance of civil suits and decide them.Section 33-C (2), in the matter of applications made by individual workmen, is, therefore, not comparable with S. 13 (2) of the Bengal, Agra and Assam Civil Courts Act, but, in fact, lays down the requirement which must be satisfied before the Labour Court can take cognizance of the matter raised before it by the applications of the workmen. Section 33-C (2) would, thus, servo the purpose in the case of Labour Courts which is served by the provisions of the Code of Civil Procedure relating to cognizance in respect of Civil Courts. S. 33-C (2), by its language, makes it clear that the jurisdiction under that provision is to be exercised only by those particular Courts which are specified in that behalf by the State Government and, in fact, confers jurisdiction on only those Courts and not on all Labour Courts, which may have been constituted under S. 7 (1) of the Act.6. It was also urged by learned counsel before us that we should give a liberal construction to the provisions of S. 33-C (2) so as to ensure that the benefits of that provision are not denied to a workman even if a State Government neglects to specify a Labour Court in that behalf. We do not think that there is any force in this submission. When a provision has been made in S. 83-C (2) for specification of a Labour Court in that behalf by the appropriate Government, it is presumed that that Government will carry out its duty and will make the necessary specification. Even under S. 7 (1) of the Act, the power is granted to a State Government to constitute Labour Courts, and if the State Government neglects to constitute Labour Courts, the provisions of S. 38-C (2) would automatically become ineffective. This would be no ground for giving an interpretation to S. 7 (1) which would do away with the necessity of the Labour Court being constituted by a State Government. It may also be incidentally mentioned that in West Bengal the State Government had made Rules in 1958 under S. 38 of the Act and Rule 74 was as follows :-"74. APPLICATION FOR RECOVERY OF DUES - An application under Section 33-C shall be delivered personally or forwarded by registered post in triplicate to the Secretary to the Government of West Bengal in the Department of Labour or to such officers to whom powers have been delegated under Section 39 of the industrial Disputes Act."This Rule lays down that all applications under S. 33-C are to be delivered to the Secretary to the Government of West Bengal in the Department of Labour, or to such officers to whom powers may have been delegated under S. 39 of the Act.The purpose of the application being sent to the Government is clear. If the application is under S. 33-C (l), the Government is to take action on that application itself and is to realise the money claimed in that application.On the other hand, if the application happens to be under S. 33-C (2), the purpose of delivery of that application to the Secretary to the Government clearly would be that, on that application, the Government would specify the Labour Court which is to deal with that application.It appears that, in some States, the appropriate Government has, by general orders, specified Labour Courts for the purpose of exercising jurisdiction under S. 33-C (2). So far as the Government of West Bengal is concerned, it did not issue any similar general order, and the intention of Rule 74 was that any workman wishing to obtain relief under S. 33-C (2) should apply to the State Government when the Government would specify the Labour Court for the purpose of dealing with that application. This position has been further clarified by a subsequent amendment of Rule 74 under which it is clearly provided that where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the workman concerned may apply to the State Government in the prescribed Form for the specification of a Labour Court for determining the amount of his dues. It is true that this Rule 74 did not in this form exists at the relevant time with which we are concerned in the present case, but we agree with the Bench of the Calcutta High Court that Rule 74, as it stood at that time, was also intended to lay down that a workman claiming relief under Section 33-C (2) must present his application to the State Government, whereupon the State Government would specify the Labour Court which was to deal with it under S. 33-C (2) of the Act.
### Response:
1
### Explanation:
that there was no general or specific order mentioning the Second Labour Court, West Bengal, as the Court specified for purposes of making the determination under Section 33-Care unable to accept this interpretation. The language of S. 33-C (2) itself makes it clear that the appropriate Government has to specify the Labour Court which is to discharge the functions under this sub-section. The use of the expression "specified in this behalf " is significant. The words "in this behalf" must be given their full import and effect.They clearly indicate that there must be a specification by the appropriate Government that a particular Court is to discharge the function under S. 33-C (2) and, thereupon, it is that Court alone which will have jurisdiction to proceed under that provision. The mere fact that a Labour Court has been constituted under S. 7 (1) of the Act for the purpose of adjudication of industrial disputes as well as for performing other functions that may be assigned to it under the Act does not mean that that Court is automatically specified as the Court for the purpose of exercising jurisdiction under S. 33-C (2) of the Act. S. 33-C (2) confers jurisdiction only on those Labour Courts which are specified in this behalf, i. e., such Labour Courts which are specifically designated by the State Government for the purpose of computing the money value of the benefit claimed by a workman.The Second Labour Court, West Bengal, was, in fact, never specified by any order of the State Government as one of those Labour Courts which is to exercise the powers or discharge the functions under S. 33-Cdo not think that this comparison is correct or justified. Though Civil Courts are constituted under S. 13 of the Bengal, Agra and Assam Civil Courts Act, it has to be remembered that the power of those Courts to take cognizance of civil suits and decide them is conferred by theCode of Civil Procedure. It is not by virtue of their constitution under S. 13 of the Bengal, Agra and Assam Civil Courts Act that the Courts take cognizance of civil suits and decide them.Section 33-C (2), in the matter of applications made by individual workmen, is, therefore, not comparable with S. 13 (2) of the Bengal, Agra and Assam Civil Courts Act, but, in fact, lays down the requirement which must be satisfied before the Labour Court can take cognizance of the matter raised before it by the applications of the workmen. Section 33-C (2) would, thus, servo the purpose in the case of Labour Courts which is served by the provisions of theCode of Civil Procedure relating to cognizance in respect of Civil Courts. S. 33-C (2), by its language, makes it clear that the jurisdiction under that provision is to be exercised only by those particular Courts which are specified in that behalf by the State Government and, in fact, confers jurisdiction on only those Courts and not on all Labour Courts, which may have been constituted under S. 7 (1) of thedo not think that there is any force in this submission. When a provision has been made in S. 83-C (2) for specification of a Labour Court in that behalf by the appropriate Government, it is presumed that that Government will carry out its duty and will make the necessary specification. Even under S. 7 (1) of the Act, the power is granted to a State Government to constitute Labour Courts, and if the State Government neglects to constitute Labour Courts, the provisions of S. 38-C (2) would automatically become ineffective. This would be no ground for giving an interpretation to S. 7 (1) which would do away with the necessity of the Labour Court being constituted by a StateRule lays down that all applications under S. 33-C are to be delivered to the Secretary to the Government of West Bengal in the Department of Labour, or to such officers to whom powers may have been delegated under S. 39 of the Act.The purpose of the application being sent to the Government is clear. If the application is under S. 33-C (l), the Government is to take action on that application itself and is to realise the money claimed in that application.On the other hand, if the application happens to be under S. 33-C (2), the purpose of delivery of that application to the Secretary to the Government clearly would be that, on that application, the Government would specify the Labour Court which is to deal with that application.It appears that, in some States, the appropriate Government has, by general orders, specified Labour Courts for the purpose of exercising jurisdiction under S. 33-C (2). So far as the Government of West Bengal is concerned, it did not issue any similar general order, and the intention of Rule 74 was that any workman wishing to obtain relief under S. 33-C (2) should apply to the State Government when the Government would specify the Labour Court for the purpose of dealing with that application. This position has been further clarified by a subsequent amendment of Rule 74 under which it is clearly provided that where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the workman concerned may apply to the State Government in the prescribed Form for the specification of a Labour Court for determining the amount of his dues. It is true that this Rule 74 did not in this form exists at the relevant time with which we are concerned in the present case, but we agree with the Bench of the Calcutta High Court that Rule 74, as it stood at that time, was also intended to lay down that a workman claiming relief under Section 33-C (2) must present his application to the State Government, whereupon the State Government would specify the Labour Court which was to deal with it under S. 33-C (2) of the Act.
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Kuldeep Singh Vs. Ganpat Lal | Section 13, a tenant shall be deemed to have paid or tendered the amount of any rent due from him, if he has paid, remitted or deposited the amount of rent by any of the methods specified in sub-section (3). Under sub-section (3), apart from personal payment of rent to the landlord, three others modes have been prescribed, namely, (i) remittance by postal money order at the ordinary address of the landlord, (ii) deposit in the bank account of the landlord, and (iii) deposit in Court in cases where the money order has been received back under the postal endorsement of refusal or unfound or where the landlord does not specify the bank account number or where there is a bona fide doubt that the person or persons to whom the rent is payable. Under sub-section (4), a legal fiction is created and the tenant is deemed to have paid or tendered the amount of rent due from him and is not to be treated in default of payment of rent if he has paid, remitted or deposited the amount of rent by any of the three methods specified in sub-section (3). 5. The High Court has held that in view of the language of clause (c) of sub-section (3) of Section 19-A, a deposit in the court can be made only if the conditions laid down in clause (c) are fulfilled and if the said conditions are not fulfilled, the deposit would not be treated as a valid deposit under clause (c) of sub-section (3) of Section 19-A and would not entitle the tenant to avail the benefit of sub-section (4) of Section 19-A. It has been held that in the instant case, it is not the case of the appellant that he had remitted the amount of rent due from him by postal money order and the same had been received back by him under the postal endorsement of refusal or unfound, nor is it the case of the appellant that he had asked the respondents to indicate the bank account number in which the rent may be deposited by the appellant to the credit of the respondents and the respondents had failed to specify the bank and account number and that it is also not the case of the appellant that there was a bona fide doubt as to the person or persons to whom the rent was payable. 6. Shri Sachar does not dispute that the conditions prescribed in clause (c) of sub-section (3) of Section 19-A for the purpose of making the deposit in Court are not fulfilled in the present case. The submission of Shri Sachar, however, is that since the appellant had deposited in court the rent for the months of May, 1982 to October, 1982 on 29th October, 1982, before the said rent for six months fell due, he cannot be held to be a defaulter in payment of rent for six months and a decree for eviction under Section 13(1)(a) could not be passed. Shri Sachar has, in this connection, placed reliance on the decision of this Court in Duli Chand v. Maman Chand, 1979(2) RCR 92(SC) : 1980(1) SCC 246 and Sheo Narain v. Shet Singh, 1980(a) RCR 255 (SC) : 1980(1) SCR 836. 7. We have carefully perused the said judgments. Both these judgments relate to the proviso to Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 which affords protection against eviction of the tenant if on the first hearing on the application for ejectment after due service he pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller. In both these cases, the tenant had deposited the amount of rent in the Court in which the ejectment proceedings were pending prior to the first hearing of the application and on the first hearing the landlord was made aware of the deposit. This Court has held that even though there was no provision in the Act for deposit of the rent in Court the said deposit could be treated as compliance of the requirements of the proviso to Section 13(2)(i) of the East Punjab Urban Restriction Act, 1949 and the tenant was entitled to avail the benefit of the said proviso.8. In the present case, the appellant is seeking to avail the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate filed. The Bengal Immunity Company Limited v. The State of Bihar and others, 1955(2) SCP 603 at 646. The appellant can avail the benefit of Section 19-A (4) if the deposit of Rs. 3,600/- made by him in the Court of Munsiff (South), Udaipur, on October 29, 1982 by way of rent for the months of May, 1982 to October, 1982, can be treated as a payment under Section 19-A (3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A (3)(c) the tenant can deposit the rent in the Court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in Court on October 29, 1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of sub-section (3) Section 19-A and the appellant cannot avail the protection of sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of March, 1982 to October, 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent of the period of six months. | 0[ds]5. The High Court has held that in view of the language of clause (c) of sub-section (3) of Section 19-A, a deposit in the court can be made only if the conditions laid down in clause (c) are fulfilled and if the said conditions are not fulfilled, the deposit would not be treated as a valid deposit under clause (c) of sub-section (3) of Section 19-A and would not entitle the tenant to avail the benefit of sub-section (4) of Section 19-A. It has been held that in the instant case, it is not the case of the appellant that he had remitted the amount of rent due from him by postal money order and the same had been received back by him under the postal endorsement of refusal or unfound, nor is it the case of the appellant that he had asked the respondents to indicate the bank account number in which the rent may be deposited by the appellant to the credit of the respondents and the respondents had failed to specify the bank and account number and that it is also not the case of the appellant that there was a bona fide doubt as to the person or persons to whom the rent was payable.We have carefully perused the said judgments. Both these judgments relate to the proviso to Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 which affords protection against eviction of the tenant if on the first hearing on the application for ejectment after due service he pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller. In both these cases, the tenant had deposited the amount of rent in the Court in which the ejectment proceedings were pending prior to the first hearing of the application and on the first hearing the landlord was made aware of the deposit. This Court has held that even though there was no provision in the Act for deposit of the rent in Court the said deposit could be treated as compliance of the requirements of the proviso to Section 13(2)(i) of the East Punjab Urban Restriction Act, 1949 and the tenant was entitled to avail the benefit of the said proviso.8. In the present case, the appellant is seeking to avail the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate filed. The Bengal Immunity Company Limited v. The State of Bihar and others, 1955(2) SCP 603 at 646. The appellant can avail the benefit of Section 19-A (4) if the deposit of Rs. 3,600/- made by him in the Court of Munsiff (South), Udaipur, on October 29, 1982 by way of rent for the months of May, 1982 to October, 1982, can be treated as a payment under Section 19-A (3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A (3)(c) the tenant can deposit the rent in the Court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in Court on October 29, 1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of sub-section (3) Section 19-A and the appellant cannot avail the protection of sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of March, 1982 to October, 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent of the period of six months. | 0 | 3,426 | 755 | ### Instruction:
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Section 13, a tenant shall be deemed to have paid or tendered the amount of any rent due from him, if he has paid, remitted or deposited the amount of rent by any of the methods specified in sub-section (3). Under sub-section (3), apart from personal payment of rent to the landlord, three others modes have been prescribed, namely, (i) remittance by postal money order at the ordinary address of the landlord, (ii) deposit in the bank account of the landlord, and (iii) deposit in Court in cases where the money order has been received back under the postal endorsement of refusal or unfound or where the landlord does not specify the bank account number or where there is a bona fide doubt that the person or persons to whom the rent is payable. Under sub-section (4), a legal fiction is created and the tenant is deemed to have paid or tendered the amount of rent due from him and is not to be treated in default of payment of rent if he has paid, remitted or deposited the amount of rent by any of the three methods specified in sub-section (3). 5. The High Court has held that in view of the language of clause (c) of sub-section (3) of Section 19-A, a deposit in the court can be made only if the conditions laid down in clause (c) are fulfilled and if the said conditions are not fulfilled, the deposit would not be treated as a valid deposit under clause (c) of sub-section (3) of Section 19-A and would not entitle the tenant to avail the benefit of sub-section (4) of Section 19-A. It has been held that in the instant case, it is not the case of the appellant that he had remitted the amount of rent due from him by postal money order and the same had been received back by him under the postal endorsement of refusal or unfound, nor is it the case of the appellant that he had asked the respondents to indicate the bank account number in which the rent may be deposited by the appellant to the credit of the respondents and the respondents had failed to specify the bank and account number and that it is also not the case of the appellant that there was a bona fide doubt as to the person or persons to whom the rent was payable. 6. Shri Sachar does not dispute that the conditions prescribed in clause (c) of sub-section (3) of Section 19-A for the purpose of making the deposit in Court are not fulfilled in the present case. The submission of Shri Sachar, however, is that since the appellant had deposited in court the rent for the months of May, 1982 to October, 1982 on 29th October, 1982, before the said rent for six months fell due, he cannot be held to be a defaulter in payment of rent for six months and a decree for eviction under Section 13(1)(a) could not be passed. Shri Sachar has, in this connection, placed reliance on the decision of this Court in Duli Chand v. Maman Chand, 1979(2) RCR 92(SC) : 1980(1) SCC 246 and Sheo Narain v. Shet Singh, 1980(a) RCR 255 (SC) : 1980(1) SCR 836. 7. We have carefully perused the said judgments. Both these judgments relate to the proviso to Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 which affords protection against eviction of the tenant if on the first hearing on the application for ejectment after due service he pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller. In both these cases, the tenant had deposited the amount of rent in the Court in which the ejectment proceedings were pending prior to the first hearing of the application and on the first hearing the landlord was made aware of the deposit. This Court has held that even though there was no provision in the Act for deposit of the rent in Court the said deposit could be treated as compliance of the requirements of the proviso to Section 13(2)(i) of the East Punjab Urban Restriction Act, 1949 and the tenant was entitled to avail the benefit of the said proviso.8. In the present case, the appellant is seeking to avail the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate filed. The Bengal Immunity Company Limited v. The State of Bihar and others, 1955(2) SCP 603 at 646. The appellant can avail the benefit of Section 19-A (4) if the deposit of Rs. 3,600/- made by him in the Court of Munsiff (South), Udaipur, on October 29, 1982 by way of rent for the months of May, 1982 to October, 1982, can be treated as a payment under Section 19-A (3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A (3)(c) the tenant can deposit the rent in the Court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in Court on October 29, 1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of sub-section (3) Section 19-A and the appellant cannot avail the protection of sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of March, 1982 to October, 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent of the period of six months.
### Response:
0
### Explanation:
5. The High Court has held that in view of the language of clause (c) of sub-section (3) of Section 19-A, a deposit in the court can be made only if the conditions laid down in clause (c) are fulfilled and if the said conditions are not fulfilled, the deposit would not be treated as a valid deposit under clause (c) of sub-section (3) of Section 19-A and would not entitle the tenant to avail the benefit of sub-section (4) of Section 19-A. It has been held that in the instant case, it is not the case of the appellant that he had remitted the amount of rent due from him by postal money order and the same had been received back by him under the postal endorsement of refusal or unfound, nor is it the case of the appellant that he had asked the respondents to indicate the bank account number in which the rent may be deposited by the appellant to the credit of the respondents and the respondents had failed to specify the bank and account number and that it is also not the case of the appellant that there was a bona fide doubt as to the person or persons to whom the rent was payable.We have carefully perused the said judgments. Both these judgments relate to the proviso to Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 which affords protection against eviction of the tenant if on the first hearing on the application for ejectment after due service he pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller. In both these cases, the tenant had deposited the amount of rent in the Court in which the ejectment proceedings were pending prior to the first hearing of the application and on the first hearing the landlord was made aware of the deposit. This Court has held that even though there was no provision in the Act for deposit of the rent in Court the said deposit could be treated as compliance of the requirements of the proviso to Section 13(2)(i) of the East Punjab Urban Restriction Act, 1949 and the tenant was entitled to avail the benefit of the said proviso.8. In the present case, the appellant is seeking to avail the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate filed. The Bengal Immunity Company Limited v. The State of Bihar and others, 1955(2) SCP 603 at 646. The appellant can avail the benefit of Section 19-A (4) if the deposit of Rs. 3,600/- made by him in the Court of Munsiff (South), Udaipur, on October 29, 1982 by way of rent for the months of May, 1982 to October, 1982, can be treated as a payment under Section 19-A (3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A (3)(c) the tenant can deposit the rent in the Court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in Court on October 29, 1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of sub-section (3) Section 19-A and the appellant cannot avail the protection of sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of March, 1982 to October, 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent of the period of six months.
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MAXIMUS ARC LIMITED Vs. M/S. SRI DEVI KARUMARIAMMAN EDUCATIONAL TRUST AND ANOTHER | 1. Leave granted. 2. The 1st respondent, which is an educational trust running a medical college and an engineering college, had availed loans from the Central Bank of India and Bank of India. It had mortgaged certain properties as security for repayment of the loans received. As far as the Bank of India is concerned, it assigned the debt owed to it to the appellant herein. The appellant invoked the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, and prayed that since the Trust had failed to discharge its duties, it be restrained from admitting students for the academic year 2019-2020, because that would affect the value of the property and also delay the sale of the property. It was also contended that the future of the students itself would be in jeopardy if they are admitted and later on the properties (colleges) were ordered to be sold. 3. The Single Judge vide order dated 10th May 2019, passed an order of interim injunction restraining the 1st respondent from admitting students from the academic year 2019-2020 and also directed the University, i.e., Respondent No. 2 herein, to initiate steps for disaffiliation of the two colleges. Aggrieved by the said order, the 1st respondent filed Letters Patent Appeal (LPA), which has been allowed, the interim order has been set aside and the matter has been remitted to the Single Judge for deciding the writ petition on merits. 4. True it is, that the ad-interim order was passed without having the reply of the Trust on record but the fact remains that the Trust has placed its view by filing the LPA and all it wanted to say has been said in the LPA. Be that as it may, we are clearly of the view that the Division Bench erred in permitting the Trust to admit the students to the colleges. We cannot lose sight of the fact that if in the near future the colleges are ordered to be sold, then the entire future of the students would be put in jeopardy and they will have nowhere to go. These are private colleges and obviously they may be charging high fees from the students. There is no way that the amount paid by the students/their parents could be refunded to them when the colleges are said to owe huge amounts to the secured creditors. | 1[ds]4. True it is, that the ad-interim order was passed without having the reply of the Trust on record but the fact remains that the Trust has placed its view by filing the LPA and all it wanted to say has been said in the LPA. Be that as it may, we are clearly of the view that the Division Bench erred in permitting the Trust to admit the students to the colleges. We cannot lose sight of the fact that if in the near future the colleges are ordered to be sold, then the entire future of the students would be put in jeopardy and they will have nowhere to go. These are private colleges and obviously they may be charging high fees from the students. There is no way that the amount paid by the students/their parents could be refunded to them when the colleges are said to owe huge amounts to the secured creditors. | 1 | 440 | 171 | ### 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:
1. Leave granted. 2. The 1st respondent, which is an educational trust running a medical college and an engineering college, had availed loans from the Central Bank of India and Bank of India. It had mortgaged certain properties as security for repayment of the loans received. As far as the Bank of India is concerned, it assigned the debt owed to it to the appellant herein. The appellant invoked the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, and prayed that since the Trust had failed to discharge its duties, it be restrained from admitting students for the academic year 2019-2020, because that would affect the value of the property and also delay the sale of the property. It was also contended that the future of the students itself would be in jeopardy if they are admitted and later on the properties (colleges) were ordered to be sold. 3. The Single Judge vide order dated 10th May 2019, passed an order of interim injunction restraining the 1st respondent from admitting students from the academic year 2019-2020 and also directed the University, i.e., Respondent No. 2 herein, to initiate steps for disaffiliation of the two colleges. Aggrieved by the said order, the 1st respondent filed Letters Patent Appeal (LPA), which has been allowed, the interim order has been set aside and the matter has been remitted to the Single Judge for deciding the writ petition on merits. 4. True it is, that the ad-interim order was passed without having the reply of the Trust on record but the fact remains that the Trust has placed its view by filing the LPA and all it wanted to say has been said in the LPA. Be that as it may, we are clearly of the view that the Division Bench erred in permitting the Trust to admit the students to the colleges. We cannot lose sight of the fact that if in the near future the colleges are ordered to be sold, then the entire future of the students would be put in jeopardy and they will have nowhere to go. These are private colleges and obviously they may be charging high fees from the students. There is no way that the amount paid by the students/their parents could be refunded to them when the colleges are said to owe huge amounts to the secured creditors.
### Response:
1
### Explanation:
4. True it is, that the ad-interim order was passed without having the reply of the Trust on record but the fact remains that the Trust has placed its view by filing the LPA and all it wanted to say has been said in the LPA. Be that as it may, we are clearly of the view that the Division Bench erred in permitting the Trust to admit the students to the colleges. We cannot lose sight of the fact that if in the near future the colleges are ordered to be sold, then the entire future of the students would be put in jeopardy and they will have nowhere to go. These are private colleges and obviously they may be charging high fees from the students. There is no way that the amount paid by the students/their parents could be refunded to them when the colleges are said to owe huge amounts to the secured creditors.
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RAGHWENDRA SHARAN SINGH Vs. RAM PRASANNA SINGH(DEAD) | to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage. 6.8 In the case of Ram Singh (supra), this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation. 7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed – brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant herein¬ original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10¬ plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein¬original defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC. 7.1 At this stage, it is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court. 8. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC. | 0[ds]6.1 At the outset, it is required to be noted that the plaintiff has instituted the suit against the defendant for a declaration that the defendant has acquired no title and possession on the basis of the deed of gift dated 06.03.1981 and that the plaintiff has got title and possession in the said property. In the suit, the plaintiff has prayed for the following reliefs:A. That on adjudication of the facts stated above, it be declared that the defendant acquired no title and possession on the basis of the said showy deed of gift dated 06.03.1981 and the plaintiff has got title and possession in the said propertyB. That it be declared that the said showy Deed of Gift dated 06.03.1981 is not binding upon the plaintiffC. That the possession of the plaintiff be continued over the suit-property and in case if he is found out of possession, a decree for recovery of possession be passed in favour of the plaintiffD. That the defendant be restrained by an order of ad¬interim injunction from transferring or encumbering or interfering with the possession of the plaintiff over the suit land, during the pendency of the suitE. That the cost of the suit be awarded to the plaintiff and against the defendantF. Any other relief or reliefs which deems fit and proper, be awarded to the plaintiff and against the defendantConsidering the averments in the plaint, it can be seen that, as such, the plaintiff has specifically admitted that the plaintiff and his brother executed the gift deed on 06.03.1981. It is admitted that the gift deed is a registered gift deed. It also emerges from the plaint that till 2003, neither the plaintiff nor his brother (during his lifetime) challenged the gift deed dated 06.03.1981 nor, at any point of time, claimed that the gift deed dated 06.03.1981 was a showy deed of gift. In fact, it is the defendant¬ appellant herein who instituted the suit in the year 2001 against his brothers to which even the plaintiff was a party as defendant No. 10 and that was a partition suit filed by the appellant herein¬ original defendant. It appears that the summon and the copy of the plaint – T.S. (Partition) Suit No. 203 of 2001 – was served upon the plaintiff in the year 2001 itself. Still, the plaintiff averred in the plaint that it came to the knowledge of the plaintiff with respect to the gift deed on 10.04.2003. Thus, it is born out from the averments in the plaint that, till 2003, the plaintiff never disputed the gift deed and/or never claimed that the gift deed dated 06.03.1981 was a showy deed of gift. With the aforesaid facts and circumstances, the application submitted by the appellant¬original defendant to reject the plaint in exercise of powers under Order 7 Rule 11 of the CPC is required to be considered6.8 In the case of Ram Singh (supra), this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed – brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant herein¬ original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10¬ plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein¬original defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC7.1 At this stage, it is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court8. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC. | 0 | 4,627 | 1,312 | ### 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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to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage. 6.8 In the case of Ram Singh (supra), this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation. 7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed – brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant herein¬ original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10¬ plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein¬original defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC. 7.1 At this stage, it is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court. 8. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC.
### Response:
0
### Explanation:
That the cost of the suit be awarded to the plaintiff and against the defendantF. Any other relief or reliefs which deems fit and proper, be awarded to the plaintiff and against the defendantConsidering the averments in the plaint, it can be seen that, as such, the plaintiff has specifically admitted that the plaintiff and his brother executed the gift deed on 06.03.1981. It is admitted that the gift deed is a registered gift deed. It also emerges from the plaint that till 2003, neither the plaintiff nor his brother (during his lifetime) challenged the gift deed dated 06.03.1981 nor, at any point of time, claimed that the gift deed dated 06.03.1981 was a showy deed of gift. In fact, it is the defendant¬ appellant herein who instituted the suit in the year 2001 against his brothers to which even the plaintiff was a party as defendant No. 10 and that was a partition suit filed by the appellant herein¬ original defendant. It appears that the summon and the copy of the plaint – T.S. (Partition) Suit No. 203 of 2001 – was served upon the plaintiff in the year 2001 itself. Still, the plaintiff averred in the plaint that it came to the knowledge of the plaintiff with respect to the gift deed on 10.04.2003. Thus, it is born out from the averments in the plaint that, till 2003, the plaintiff never disputed the gift deed and/or never claimed that the gift deed dated 06.03.1981 was a showy deed of gift. With the aforesaid facts and circumstances, the application submitted by the appellant¬original defendant to reject the plaint in exercise of powers under Order 7 Rule 11 of the CPC is required to be considered6.8 In the case of Ram Singh (supra), this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed – brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant herein¬ original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10¬ plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein¬original defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC7.1 At this stage, it is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court8. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC.
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Charity Commissioner, Bombay Vs. Administrator of The Shringeri Math & Its Properties | worship within the meaning of the definition in Section 2 (9) of the Act." He observed:"There is no dispute that there are idols of Shri Adya Shankaracharya and Shri Dattatraya in this institution and worship of those idols is carried on there. The festivals which are held and which are attended by the public who are invited on such occasions are the Jayantis of Shri Shankaracharya and the deity of Shri Dattatraya. In this behalf the printed invitations (Exhibits 12/29, 12/30 and 12/31) may be perused. There is also day-to-day worship of these deities which a carried on by the Pujaris."9. He further observed:"Considering from this point of view, this place would be a place of religious worship and there is no dispute that at any rate it is appurtenant to the main institution or the Muth at Shringeri."He further held that "this institution or Foundation at Nasik is admittedly a Branch of the Math at Shringeri which is founded by Adya Shankaracharya and this Branch would partake of the nature of the main or Principal Institution at Shringeri." He accordingly held that it would be idle to contend that this institution at Nasik would not come within even what is called the "inclusive portion" of the definition of "Math" enacted in Section 2 (9) of the Act.10. The learned counsel for the appellant cosntends that the Nasik Math is an independent Math within Section 2 (9) of the Act and, therefore, covered by the provisions of the Act, at any rate, even if the Nasik Math is on adjunct of or dependent upon the principal math at Shringeri, it is covered by the Act.11. In Maharajkumari Umeshwari Kuer v. State of Bihar, Petn. No. 405 of 1955, D/- 15-12-1960. (SC) while considering the provisions of the Bihar Hindu Religious Trusts Act, 1950 (Bihar Act I of 1951), Gajendrgadkar, J., as he then was speaking for the Court, observed:"On behalf of the petitioner the learned Attorney General has contended that as a result of our decisions in the group of cases to which we have already referred it is now established that before the Act can apply two conditions must be satisfied; first, that the religious trust or the institution itself must be in Bihar, and second, part of its property must be situated in the State of Bihar. Since the first of these two conditions is not satisfied in the present case the Act cannot apply. In our opinion this contention is well founded and must be upheld."12. The facts in that case were that:"a temple (was) situated at Vrindavan Dham in the District of Mathra in Uttar Pradesh. In this temple were installed the family idol of Shri Radha Gopalji as well as the idol of Radhendra Kishorji in 1872 and 1877 respectively by Maharani Inderjit Kuer of Tikari. The said Maharani created waqf of certain properties known as Balkhar Mahal in the District of Gaya by a registered deed of endowment on July 25, 1872, for the purpose of meeting the expenses relating to food, offering prayers and worship in the said temple. . . . . . . . The Trust owns properties also in Bihar."13. This Court repelled the contention that since the Trustees reside in Bihar and the Trust is substantially administered in Bihar the provisions of the Bihar Act would be applicable, and observed:"It is the situs of the trust of the principal institution or temple with which the trust is integrally connected that determines the applicability of the Act. The properties in question which are situated partly in Uttar Pradesh and partly in Bihar belong to the temple an the deity is their owner. This deity is enshrined in the temple situated at Vrindavan Dham, and so it is common ground that the situs of the temple is outside Bihar. It is also admitted that part of the properties belonging to the trust are in Uttar Pradesh. Therefore the two tests laid down by this court inevitably lead to the conclusion that the present trust is outside the purview of the Act. The fact that the trustees reside in Bihar or that the trust is partially administered in Bihar for charitable purposes can make no difference to this position."14. In Mahant Ramswarup v. Motiram Khandu, 1968 Mah LJ 363 = (AIR 1968 SC 422 ) a case governed by the Bombay Public Trusts Act, Shelat, J., observed:"There is no dispute that the trust is administered at Burhanpur and the bulk of its properties, except the three pieces of lands situated in the District of Dhulia, are all situated in the Madhya Pradesh State. The fact that a part of its properties is situated in Maharashtra State though the trust is within Madhya Pradesh State would not mean that the trust would be governed partly by the Madhya Pradesh Act and partly by the Bombay Act. Such a division of the Trust and its administration is not contemplated by either of the two Acts."15. It seems to us that, in few of the above authorities, in order to determine the situs of the trust, which consists of a Math and a subordinate so-called math or maths, it is the situs of the principal math which will determine the applicability of the Act. We need not here decide the position of an independent real math though connected with another math. The High Court has found in this case that in the Nasik Math no religious instructions are imparted and no spiritual service is rendered to any body o disciples. Further no member of the public is allowed to enter the place of worship without permission although worship is carried out by the Pujaris according to vedic usage. In view of these findings the Nasik Math cannot be held to be a real math or temple within the definitions, set out above. In our opinion, the High Court was right in holding that the Nasik Math is not liable to be registered under the Act. | 0[ds]15. It seems to us that, in few of the above authorities, in order to determine the situs of the trust, which consists of a Math and a subordinatemath or maths, it is the situs of the principal math which will determine the applicability of the Act. We need not here decide the position of an independent real math though connected with another math. The High Court has found in this case that in the Nasik Math no religious instructions are imparted and no spiritual service is rendered to any body o disciples. Further no member of the public is allowed to enter the place of worship without permission although worship is carried out by the Pujaris according to vedic usage. In view of these findings the Nasik Math cannot be held to be a real math or temple within the definitions, set out above. In our opinion, the High Court was right in holding that the Nasik Math is not liable to be registered under the Act. | 0 | 2,130 | 186 | ### 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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worship within the meaning of the definition in Section 2 (9) of the Act." He observed:"There is no dispute that there are idols of Shri Adya Shankaracharya and Shri Dattatraya in this institution and worship of those idols is carried on there. The festivals which are held and which are attended by the public who are invited on such occasions are the Jayantis of Shri Shankaracharya and the deity of Shri Dattatraya. In this behalf the printed invitations (Exhibits 12/29, 12/30 and 12/31) may be perused. There is also day-to-day worship of these deities which a carried on by the Pujaris."9. He further observed:"Considering from this point of view, this place would be a place of religious worship and there is no dispute that at any rate it is appurtenant to the main institution or the Muth at Shringeri."He further held that "this institution or Foundation at Nasik is admittedly a Branch of the Math at Shringeri which is founded by Adya Shankaracharya and this Branch would partake of the nature of the main or Principal Institution at Shringeri." He accordingly held that it would be idle to contend that this institution at Nasik would not come within even what is called the "inclusive portion" of the definition of "Math" enacted in Section 2 (9) of the Act.10. The learned counsel for the appellant cosntends that the Nasik Math is an independent Math within Section 2 (9) of the Act and, therefore, covered by the provisions of the Act, at any rate, even if the Nasik Math is on adjunct of or dependent upon the principal math at Shringeri, it is covered by the Act.11. In Maharajkumari Umeshwari Kuer v. State of Bihar, Petn. No. 405 of 1955, D/- 15-12-1960. (SC) while considering the provisions of the Bihar Hindu Religious Trusts Act, 1950 (Bihar Act I of 1951), Gajendrgadkar, J., as he then was speaking for the Court, observed:"On behalf of the petitioner the learned Attorney General has contended that as a result of our decisions in the group of cases to which we have already referred it is now established that before the Act can apply two conditions must be satisfied; first, that the religious trust or the institution itself must be in Bihar, and second, part of its property must be situated in the State of Bihar. Since the first of these two conditions is not satisfied in the present case the Act cannot apply. In our opinion this contention is well founded and must be upheld."12. The facts in that case were that:"a temple (was) situated at Vrindavan Dham in the District of Mathra in Uttar Pradesh. In this temple were installed the family idol of Shri Radha Gopalji as well as the idol of Radhendra Kishorji in 1872 and 1877 respectively by Maharani Inderjit Kuer of Tikari. The said Maharani created waqf of certain properties known as Balkhar Mahal in the District of Gaya by a registered deed of endowment on July 25, 1872, for the purpose of meeting the expenses relating to food, offering prayers and worship in the said temple. . . . . . . . The Trust owns properties also in Bihar."13. This Court repelled the contention that since the Trustees reside in Bihar and the Trust is substantially administered in Bihar the provisions of the Bihar Act would be applicable, and observed:"It is the situs of the trust of the principal institution or temple with which the trust is integrally connected that determines the applicability of the Act. The properties in question which are situated partly in Uttar Pradesh and partly in Bihar belong to the temple an the deity is their owner. This deity is enshrined in the temple situated at Vrindavan Dham, and so it is common ground that the situs of the temple is outside Bihar. It is also admitted that part of the properties belonging to the trust are in Uttar Pradesh. Therefore the two tests laid down by this court inevitably lead to the conclusion that the present trust is outside the purview of the Act. The fact that the trustees reside in Bihar or that the trust is partially administered in Bihar for charitable purposes can make no difference to this position."14. In Mahant Ramswarup v. Motiram Khandu, 1968 Mah LJ 363 = (AIR 1968 SC 422 ) a case governed by the Bombay Public Trusts Act, Shelat, J., observed:"There is no dispute that the trust is administered at Burhanpur and the bulk of its properties, except the three pieces of lands situated in the District of Dhulia, are all situated in the Madhya Pradesh State. The fact that a part of its properties is situated in Maharashtra State though the trust is within Madhya Pradesh State would not mean that the trust would be governed partly by the Madhya Pradesh Act and partly by the Bombay Act. Such a division of the Trust and its administration is not contemplated by either of the two Acts."15. It seems to us that, in few of the above authorities, in order to determine the situs of the trust, which consists of a Math and a subordinate so-called math or maths, it is the situs of the principal math which will determine the applicability of the Act. We need not here decide the position of an independent real math though connected with another math. The High Court has found in this case that in the Nasik Math no religious instructions are imparted and no spiritual service is rendered to any body o disciples. Further no member of the public is allowed to enter the place of worship without permission although worship is carried out by the Pujaris according to vedic usage. In view of these findings the Nasik Math cannot be held to be a real math or temple within the definitions, set out above. In our opinion, the High Court was right in holding that the Nasik Math is not liable to be registered under the Act.
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15. It seems to us that, in few of the above authorities, in order to determine the situs of the trust, which consists of a Math and a subordinatemath or maths, it is the situs of the principal math which will determine the applicability of the Act. We need not here decide the position of an independent real math though connected with another math. The High Court has found in this case that in the Nasik Math no religious instructions are imparted and no spiritual service is rendered to any body o disciples. Further no member of the public is allowed to enter the place of worship without permission although worship is carried out by the Pujaris according to vedic usage. In view of these findings the Nasik Math cannot be held to be a real math or temple within the definitions, set out above. In our opinion, the High Court was right in holding that the Nasik Math is not liable to be registered under the Act.
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Naresh K. Aggarwala & Co Vs. Canbank Financial Services Ltd. | Delhi Stock Exchange rules, bye-laws and regulations." In the face of such an admission, the Special Court, in our opinion, has correctly concluded, as noticed above. In our opinion the view expressed by the Special Court does not call for any interference. 20. The contention that the circular did not apply to unlisted securities was duly considered and rejected by the Special Court. The Special Court thoroughly considered the term `securities as defined in Section 2(h) of the Act. It reads as under:- "2(h) Securities include-(i) shares, scrips, stocks, bonds, debentures, debenture stock or other marketable securities of a like nature in or of any incorporated company or other body corporate;(ia) derivative;(ib) units or any other instrument issued by any collective investment scheme to the investors in such schemes.(ii) Government securities;(iia) such other instruments as may be declared by the central Government to be securities; and(iii) rights or interests in securities; " Perusal of the above quoted definition shows that it does not make any distinction between listed securities and unlisted securities and therefore it is clear that the Circular will apply to the securities which are not listed on the Stock Exchange. Admittedly the contract note issued in relation to this transaction by the appellant does not show that it was a spot delivery contract, therefore the transaction was clearly contrary to the circular. Consequently in terms of the provisions of Sub-section(2) of Section 16 the transaction was illegal and is not capable of being enforced. 21. With regard to issues no 1,8 & 9, it was correctly observed by the Special Court that the Plaintiff i.e. Appellant herein is not entitled to make any claim either in relation to the Reliance Industries Shares nor in relation to contract for SAIL shares. Further as the appellant is not entitled to claim any amount from the respondent on account of the aforesaid transactions, there is no question of the appellant being entitled to any interest. 22. On Issue No.10, Mr.Suri has submitted that the Special Court has illegally allowed the counter claim of respondent No.1. It was submitted that the Special Court has come to a contrary conclusion even though the fact situation was identical in the claim put forward by both the parties. We are unable to accept the submissions made by the learned senior counsel. Once it is concluded that the appellant is not entitled to claim any amount from respondent No.1 in relation to the aforesaid three transactions i.e. contract dated 14.2.1992, contract dated 23.3.1992 for one lakh RIL shares each and contract dated 27.2.1992 relating to one lakh SAIL share. It needed to be determined as to whether the appellant in fact needed to compensate respondent No.1. In the counter claim, the respondent No.1 clearly stated that the appellant had agreed to purchase one lakh shares of RIL on 14.2.1992 @ Rs.154/- per share, but this contract was cancelled by the appellant on the very same date. Thereafter, the appellant had intimated about another contract for purchase of one lakh shares of RIL on 23.3.1992 @ Rs.375/- per share. Against the aforesaid contract, the delivery of one lakh shares was made by the respondent No.1 to the appellant on 22.4.1992. After the receipt of a letter dated 15.9.1992 when the Management of respondent No.1 had changed, the appellant started claiming that the delivery of one lakh shares on 22.4.1992 had been adjusted against the cancelled contract dated 14.2.1992. The respondent No.1 had based the counter claim on the difference of price in shares between two periods of contract i.e. 14.2.1992 and 23.3.1992. The difference of amount of Rs.2,21,00,000/- was claimed as the amount due from the appellant to the respondent No.1. A perusal of the letter dated 27.5.1993, which contains a statement of account with the subject "settlement of outstanding" clearly shows that the respondent No.1 is claiming a sum of Rs.2,56,25,000/- as outstanding against the appellant from various transactions as per the details given therein. Against the entry dated 4.3.1992, there is a clear entry with regard to the sale of one lakh RIL shares @ Rs.375/- per share given a total consideration of Rs.3,75,00,000/-. The respondent No.1 had clearly requested the appellant to settle account by paying Rs.2,56,25,000/- immediately. In the letter dated 14.6.1993, the appellant offered its comment on the statement of account for payment by respondent No.1 on 27.5.1993. Herein, the appellant states that the credit claimed by the respondent No.1 should be Rs.2,21,00,000/- instead of Rs.2,56,25,000/-. This balance was claimed by the appellant on the ground that the credit claimed by respondent No.1 of Rs.3,75,00,000/- has to be reduced by Rs.1,56,00,000/- i.e. the difference in price of shares of the two contracts dated 14.2.1992 and 23.3.1992. The appellant also claimed that a sum of Rs.2,95,00,000/- was also required to be adjusted in respect of SAIL shares. The appellant had claimed the difference in contract price of shares of SAIL @ Rs.51/- per share against the official quotation of the Delhi Stock Exchange @ Rs.110/- per share. Thus he had claimed that respondent No.1 was liable to pay for the difference of Rs.59/- per share (Rs.110/-Rs.51/- per share amounting to Rs.2,95,00,000). It was held by the Special Court, which finding has been affirmed by us, that the contract with regard to SAIL shares being contrary to law was void ab initio. Therefore, the appellant could not possibly claim anything against the aforesaid SAIL shares on account of any difference in the contracted rate and the rate when the same were listed on the Delhi Stock Exchange. Therefore, the irresistible conclusion was that the appellant was liable to pay to respondent No.1 for the RIL Shares @ Rs.375/- per share, the contract dated 14.2.1992 having been cancelled. Thus the Special Court, in our opinion, correctly concluded that the appellant was liable to pay to the respondent No.1 the amount of Rs.2,53,75,000/-. In view of the above, we find no reason to interfere with the findings of the Special Court on Issue No.10 also. | 0[ds]15. Upon consideration of the submissions made by the learned counsel for the parties we have examined the material on the record. It is not disputed before us that there were, in fact, two transactions with regard to RIL shares dated 14.2.1992 and 23.3.1992. The Special Court notices that the appellant claims to have adjusted the delivery of one lakh shares of RIL against the contract dated 14.2.1992 which is said to have been cancelled by respondent No.1. The Special Court also notices that if the case of the appellant that the contract dated 14.2.1992 was alive is accepted, then the transaction will remain incomplete and unfulfilled.In the face of these averments, we find it a little difficult to appreciate the submission of Mr. Suri that the findings on these issues are erroneous or not supported by any evidence. The Special Court also notices that the appellant had, in fact, adjusted the delivery of shares towards the contract dated 23.3.1992. It is true that in theappellant had stated that he had made the claim against respondent No.1 on the basis of difference in price of Reliance shares as on 14.2.1992 and as on 23.3.1992, i.e.,for one lakh shares. In our opinion, the Special Court has correctly observed that in the absence of pleadings the statement made by the appellant had to be ignored. We are also unable to accept the criticism of Mr. Suri that the burden of proving the continuance of the contract dated 14.2.1992 was not on the appellant. We may notice here that respondent No.1 had taken a categorical plea that contract dated 14.2.1992 was cancelled by appellant on the same day. The conduct of the appellant showing delivery made on 22.4.1992 as delivery against the contract dated 23.31992 indicated that he was also treating the contract dated 14.2.1992 to be cancelled. Had that not been so, he would have made entries in the books of account to show that the delivery of shares were against the contract dated 14.2.1992. In our opinion Mr. Bhusan, has rightly pointed out that till 27.7.1992, the reliance shares were not in issue. The letter written by the appellant to the Respondent No 1 talks only of the SAIL shares. Therefore it was for the appellant to produce documentary evidence to show that in his books of accounts the contract had been shown asour opinion the view expressed by the special Court is an acceptable view, and does not call for any interference.18. With regard to issues no 6 & 7, we again do not find any merit in the submissions of Mr. Suri. Admitted position is that on the date when the contract with regard to the SAIL shares was entered into, the shares were unlisted. It is also the admitted position that on that day, the circular dated 27.6.1969 issued under Section 16 of the Securities Contract Regulation Act 1956 was in existence and in force.On Issue No.10, Mr.Suri has submitted that the Special Court has illegally allowed the counter claim of respondent No.1. It was submitted that the Special Court has come to a contrary conclusion even though the fact situation was identical in the claim put forward by both the parties. We are unable to accept the submissions made by the learned senior counsel. Once it is concluded that the appellant is not entitled to claim any amount from respondent No.1 in relation to the aforesaid three transactions i.e. contract dated 14.2.1992, contract dated 23.3.1992 for one lakh RIL shares each and contract dated 27.2.1992 relating to one lakh SAIL share. It needed to be determined as to whether the appellant in fact needed to compensate respondent No.1. In the counter claim, the respondent No.1 clearly stated that the appellant had agreed to purchase one lakh shares of RIL on 14.2.1992 @ Rs.154/per share, but this contract was cancelled by the appellant on the very same date. Thereafter, the appellant had intimated about another contract for purchase of one lakh shares of RIL on 23.3.1992 @ Rs.375/per share. Against the aforesaid contract, the delivery of one lakh shares was made by the respondent No.1 to the appellant on 22.4.1992. After the receipt of a letter dated 15.9.1992 when the Management of respondent No.1 had changed, the appellant started claiming that the delivery of one lakh shares on 22.4.1992 had been adjusted against the cancelled contract dated 14.2.1992. The respondent No.1 had based the counter claim on the difference of price in shares between two periods of contract i.e. 14.2.1992 and 23.3.1992. The difference of amount of Rs.2,21,00,000/was claimed as the amount due from the appellant to the respondent No.1. A perusal of the letter dated 27.5.1993, which contains a statement of account with the subject "settlement of outstanding" clearly shows that the respondent No.1 is claiming a sum of Rs.2,56,25,000/as outstanding against the appellant from various transactions as per the details given therein. Against the entry dated 4.3.1992, there is a clear entry with regard to the sale of one lakh RIL shares @ Rs.375/per share given a total consideration of Rs.The respondent No.1 had clearly requested the appellant to settle account by paying Rs.2,56,25,000/immediately. In the letter dated 14.6.1993, the appellant offered its comment on the statement of account for payment by respondent No.1 on 27.5.1993. Herein, the appellant states that the credit claimed by the respondent No.1 should be Rs.2,21,00,000/This balance was claimed by the appellant on the ground that the credit claimed by respondent No.1 of Rs.3,75,00,000/i.e. the difference in price of shares of the two contracts dated 14.2.1992 and 23.3.1992. The appellant also claimed that a sum of Rs.2,95,00,000/was also required to be adjusted in respect of SAIL shares. The appellant had claimed the difference in contract price of shares of SAIL @ Rs.51/per share against the official quotation of the Delhi Stock Exchange @ Rs.110/per share. Thus he had claimed that respondent No.1 was liable to pay for the difference of Rs.59/per share amounting to Rs.2,95,00,000). It was held by the Special Court, which finding has been affirmed by us, that the contract with regard to SAIL shares being contrary to law was void ab initio. Therefore, the appellant could not possibly claim anything against the aforesaid SAIL shares on account of any difference in the contracted rate and the rate when the same were listed on the Delhi Stock Exchange. Therefore, the irresistible conclusion was that the appellant was liable to pay to respondent No.1 for the RIL Shares @ Rs.375/per share, the contract dated 14.2.1992 having been cancelled. Thus the Special Court, in our opinion, correctly concluded that the appellant was liable to pay to the respondent No.1 the amount of Rs.In view of the above, we find no reason to interfere with the findings of the Special Court on Issue No.10 also. | 0 | 7,152 | 1,218 | ### 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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Delhi Stock Exchange rules, bye-laws and regulations." In the face of such an admission, the Special Court, in our opinion, has correctly concluded, as noticed above. In our opinion the view expressed by the Special Court does not call for any interference. 20. The contention that the circular did not apply to unlisted securities was duly considered and rejected by the Special Court. The Special Court thoroughly considered the term `securities as defined in Section 2(h) of the Act. It reads as under:- "2(h) Securities include-(i) shares, scrips, stocks, bonds, debentures, debenture stock or other marketable securities of a like nature in or of any incorporated company or other body corporate;(ia) derivative;(ib) units or any other instrument issued by any collective investment scheme to the investors in such schemes.(ii) Government securities;(iia) such other instruments as may be declared by the central Government to be securities; and(iii) rights or interests in securities; " Perusal of the above quoted definition shows that it does not make any distinction between listed securities and unlisted securities and therefore it is clear that the Circular will apply to the securities which are not listed on the Stock Exchange. Admittedly the contract note issued in relation to this transaction by the appellant does not show that it was a spot delivery contract, therefore the transaction was clearly contrary to the circular. Consequently in terms of the provisions of Sub-section(2) of Section 16 the transaction was illegal and is not capable of being enforced. 21. With regard to issues no 1,8 & 9, it was correctly observed by the Special Court that the Plaintiff i.e. Appellant herein is not entitled to make any claim either in relation to the Reliance Industries Shares nor in relation to contract for SAIL shares. Further as the appellant is not entitled to claim any amount from the respondent on account of the aforesaid transactions, there is no question of the appellant being entitled to any interest. 22. On Issue No.10, Mr.Suri has submitted that the Special Court has illegally allowed the counter claim of respondent No.1. It was submitted that the Special Court has come to a contrary conclusion even though the fact situation was identical in the claim put forward by both the parties. We are unable to accept the submissions made by the learned senior counsel. Once it is concluded that the appellant is not entitled to claim any amount from respondent No.1 in relation to the aforesaid three transactions i.e. contract dated 14.2.1992, contract dated 23.3.1992 for one lakh RIL shares each and contract dated 27.2.1992 relating to one lakh SAIL share. It needed to be determined as to whether the appellant in fact needed to compensate respondent No.1. In the counter claim, the respondent No.1 clearly stated that the appellant had agreed to purchase one lakh shares of RIL on 14.2.1992 @ Rs.154/- per share, but this contract was cancelled by the appellant on the very same date. Thereafter, the appellant had intimated about another contract for purchase of one lakh shares of RIL on 23.3.1992 @ Rs.375/- per share. Against the aforesaid contract, the delivery of one lakh shares was made by the respondent No.1 to the appellant on 22.4.1992. After the receipt of a letter dated 15.9.1992 when the Management of respondent No.1 had changed, the appellant started claiming that the delivery of one lakh shares on 22.4.1992 had been adjusted against the cancelled contract dated 14.2.1992. The respondent No.1 had based the counter claim on the difference of price in shares between two periods of contract i.e. 14.2.1992 and 23.3.1992. The difference of amount of Rs.2,21,00,000/- was claimed as the amount due from the appellant to the respondent No.1. A perusal of the letter dated 27.5.1993, which contains a statement of account with the subject "settlement of outstanding" clearly shows that the respondent No.1 is claiming a sum of Rs.2,56,25,000/- as outstanding against the appellant from various transactions as per the details given therein. Against the entry dated 4.3.1992, there is a clear entry with regard to the sale of one lakh RIL shares @ Rs.375/- per share given a total consideration of Rs.3,75,00,000/-. The respondent No.1 had clearly requested the appellant to settle account by paying Rs.2,56,25,000/- immediately. In the letter dated 14.6.1993, the appellant offered its comment on the statement of account for payment by respondent No.1 on 27.5.1993. Herein, the appellant states that the credit claimed by the respondent No.1 should be Rs.2,21,00,000/- instead of Rs.2,56,25,000/-. This balance was claimed by the appellant on the ground that the credit claimed by respondent No.1 of Rs.3,75,00,000/- has to be reduced by Rs.1,56,00,000/- i.e. the difference in price of shares of the two contracts dated 14.2.1992 and 23.3.1992. The appellant also claimed that a sum of Rs.2,95,00,000/- was also required to be adjusted in respect of SAIL shares. The appellant had claimed the difference in contract price of shares of SAIL @ Rs.51/- per share against the official quotation of the Delhi Stock Exchange @ Rs.110/- per share. Thus he had claimed that respondent No.1 was liable to pay for the difference of Rs.59/- per share (Rs.110/-Rs.51/- per share amounting to Rs.2,95,00,000). It was held by the Special Court, which finding has been affirmed by us, that the contract with regard to SAIL shares being contrary to law was void ab initio. Therefore, the appellant could not possibly claim anything against the aforesaid SAIL shares on account of any difference in the contracted rate and the rate when the same were listed on the Delhi Stock Exchange. Therefore, the irresistible conclusion was that the appellant was liable to pay to respondent No.1 for the RIL Shares @ Rs.375/- per share, the contract dated 14.2.1992 having been cancelled. Thus the Special Court, in our opinion, correctly concluded that the appellant was liable to pay to the respondent No.1 the amount of Rs.2,53,75,000/-. In view of the above, we find no reason to interfere with the findings of the Special Court on Issue No.10 also.
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or not supported by any evidence. The Special Court also notices that the appellant had, in fact, adjusted the delivery of shares towards the contract dated 23.3.1992. It is true that in theappellant had stated that he had made the claim against respondent No.1 on the basis of difference in price of Reliance shares as on 14.2.1992 and as on 23.3.1992, i.e.,for one lakh shares. In our opinion, the Special Court has correctly observed that in the absence of pleadings the statement made by the appellant had to be ignored. We are also unable to accept the criticism of Mr. Suri that the burden of proving the continuance of the contract dated 14.2.1992 was not on the appellant. We may notice here that respondent No.1 had taken a categorical plea that contract dated 14.2.1992 was cancelled by appellant on the same day. The conduct of the appellant showing delivery made on 22.4.1992 as delivery against the contract dated 23.31992 indicated that he was also treating the contract dated 14.2.1992 to be cancelled. Had that not been so, he would have made entries in the books of account to show that the delivery of shares were against the contract dated 14.2.1992. In our opinion Mr. Bhusan, has rightly pointed out that till 27.7.1992, the reliance shares were not in issue. The letter written by the appellant to the Respondent No 1 talks only of the SAIL shares. Therefore it was for the appellant to produce documentary evidence to show that in his books of accounts the contract had been shown asour opinion the view expressed by the special Court is an acceptable view, and does not call for any interference.18. With regard to issues no 6 & 7, we again do not find any merit in the submissions of Mr. Suri. Admitted position is that on the date when the contract with regard to the SAIL shares was entered into, the shares were unlisted. It is also the admitted position that on that day, the circular dated 27.6.1969 issued under Section 16 of the Securities Contract Regulation Act 1956 was in existence and in force.On Issue No.10, Mr.Suri has submitted that the Special Court has illegally allowed the counter claim of respondent No.1. It was submitted that the Special Court has come to a contrary conclusion even though the fact situation was identical in the claim put forward by both the parties. We are unable to accept the submissions made by the learned senior counsel. Once it is concluded that the appellant is not entitled to claim any amount from respondent No.1 in relation to the aforesaid three transactions i.e. contract dated 14.2.1992, contract dated 23.3.1992 for one lakh RIL shares each and contract dated 27.2.1992 relating to one lakh SAIL share. It needed to be determined as to whether the appellant in fact needed to compensate respondent No.1. In the counter claim, the respondent No.1 clearly stated that the appellant had agreed to purchase one lakh shares of RIL on 14.2.1992 @ Rs.154/per share, but this contract was cancelled by the appellant on the very same date. Thereafter, the appellant had intimated about another contract for purchase of one lakh shares of RIL on 23.3.1992 @ Rs.375/per share. Against the aforesaid contract, the delivery of one lakh shares was made by the respondent No.1 to the appellant on 22.4.1992. After the receipt of a letter dated 15.9.1992 when the Management of respondent No.1 had changed, the appellant started claiming that the delivery of one lakh shares on 22.4.1992 had been adjusted against the cancelled contract dated 14.2.1992. The respondent No.1 had based the counter claim on the difference of price in shares between two periods of contract i.e. 14.2.1992 and 23.3.1992. The difference of amount of Rs.2,21,00,000/was claimed as the amount due from the appellant to the respondent No.1. A perusal of the letter dated 27.5.1993, which contains a statement of account with the subject "settlement of outstanding" clearly shows that the respondent No.1 is claiming a sum of Rs.2,56,25,000/as outstanding against the appellant from various transactions as per the details given therein. Against the entry dated 4.3.1992, there is a clear entry with regard to the sale of one lakh RIL shares @ Rs.375/per share given a total consideration of Rs.The respondent No.1 had clearly requested the appellant to settle account by paying Rs.2,56,25,000/immediately. In the letter dated 14.6.1993, the appellant offered its comment on the statement of account for payment by respondent No.1 on 27.5.1993. Herein, the appellant states that the credit claimed by the respondent No.1 should be Rs.2,21,00,000/This balance was claimed by the appellant on the ground that the credit claimed by respondent No.1 of Rs.3,75,00,000/i.e. the difference in price of shares of the two contracts dated 14.2.1992 and 23.3.1992. The appellant also claimed that a sum of Rs.2,95,00,000/was also required to be adjusted in respect of SAIL shares. The appellant had claimed the difference in contract price of shares of SAIL @ Rs.51/per share against the official quotation of the Delhi Stock Exchange @ Rs.110/per share. Thus he had claimed that respondent No.1 was liable to pay for the difference of Rs.59/per share amounting to Rs.2,95,00,000). It was held by the Special Court, which finding has been affirmed by us, that the contract with regard to SAIL shares being contrary to law was void ab initio. Therefore, the appellant could not possibly claim anything against the aforesaid SAIL shares on account of any difference in the contracted rate and the rate when the same were listed on the Delhi Stock Exchange. Therefore, the irresistible conclusion was that the appellant was liable to pay to respondent No.1 for the RIL Shares @ Rs.375/per share, the contract dated 14.2.1992 having been cancelled. Thus the Special Court, in our opinion, correctly concluded that the appellant was liable to pay to the respondent No.1 the amount of Rs.In view of the above, we find no reason to interfere with the findings of the Special Court on Issue No.10 also.
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Polymat India P.Ltd. Vs. National Insurance Co.Ltd.&Ors | complainant wanted some amendments in both policies i.e. coverage of goods lying outside plant including the expression factory ‘cum- godown as there was no godown in existence but those amendments were not agreed to by the insurance company, they only agreed to make amendment of incorporation of name of the Bank, i.e., Allahabad Bank in the Policy. When the terms of the contract have been reduced in writing it cannot be changed without the mutual agreement by way of both the parties. In the present case, they did not agree for amendment of the policies, if the complainant was vigilant and wanted this expression to be deleted he should have prosecuted the matter seriously or repudiated the Policy. The only defence pleaded was that they were assured orally but no evidence was led by complainant. On the contrary, suggestion was denied by single witness produced by the Insurance Company before National Forum. In this connection, our attention was invited to decision of this Court in the case of United India Insurance Co. Ltd. Vs. M. K. J. Corporation reported in (1996) 6 SCC 428 wherein it was observed as under: "..After the completion of the contract, no material alteration can be made in its terms except by mutual consent." 15. Therefore, in the present case when the proposal was sought to be amended and it was only agreed to by the Insurance Company to the extent substituting the Bank i.e. Allahabad Bank and the other amendments were not agreed by the Insurance Company, the complainant had a choice to repudiate the insurance policy or to obtain a proper declaration. But the complainant did not pursue the matter further, it is to be blamed itself for this. 16. Therefore, after construing the terms of the contract it transpires that the intention between the parties was to cover the plant and machinery which were lying in the factory, i.e., in the covered area and in the shed and not the goods which were lying outside the covered area. Therefore the order of the Commission directing the payment of 75% of the assessment made by the Surveyor of the goods which were lying inside and outside the factory was not correct approach on the part of the Commission. The Commission should have examined the matter in detail in terms of the policy and the relevant documents bearing on the subject. This was not done. Therefore, we have no hesitation to say that what was sought to be covered by both the Policies was only plant and machinery in shed and not the goods which were lying outside the plant and shed. 17. Next question is whether the reduction of the amount by insurance company under various heads is justified or not? We have gone through the reasons given by the Insurance Company for reducing the amount and we are of the opinion that the reasons given by the Insurance Company appear to be reasonable and justified which read as under:- "1. Though surveyor assessed the total loss on building as Rs. 5,52,049/- but while computing we only accepted Rs. 4,97,049/- as the balance amount of Rs. 55,000/- is assessment relating to the portion which is not inside the building.2. Regarding plant and machinery though the surveyor assessed Rs. 24,61,757/- but we considered Rs. 14,97,651/- and rest Rs. 9,64,106/- was related to the assessment of the plant and machinery installed outside the building.3. Regarding assessment of furniture, fixture and fittings though you mentioned that the surveyor assessed Rs. 1,76,820/- but it did not appear true according to the survey report the surveyor assessed only Rs. 1,55,820/-. But we could consider to the tune of Rs. 87,320/- as the business amount of Rs. 68,500/- was related to the portion kept outside the building.Under SSP Policy though the surveyor assessed Rs. 16,17,212/- but we could consider only (i) Hydraulic Oil (630 litres) amounting to Rs.11,100/- and (ii) H.S.D. in barrel (1081 litres) amounting to Rs. 2624/- aggregating to Rs. 13,724/- and rest of the items assessed by surveyor were beyond the scope of cover and not within the purview of the policy." Therefore, on this account also we do not find any merit to interfere in the matter. 18. The next question is with regard to award of interest. As per the guidelines laid down, the Insurance Company had to settle the claim within two months of the Surveyors Report. The reason for delay has been explained. Since the fire took place on 13th January, 1993, the Insurance Company appointed the Surveyor and Surveyor sent his report. dated November 5, 1993 which was received by the appellant on November 9, 1993. Since there was some discrepancies in the survey report, the Insurance Company vide their letter dated December 14, 1993 sought clarification from the surveyors which was replied on 22.4.94 by the Surveyors. The Insurance Company after that took the decision and informed the claimant vide their letter dated 1.7.94 for approval of the claim for Rs. 20,23,899/- under both the polices. Therefore, it was submitted that almost within stipulated time the intimation was sent to them, as such the levy of interest @ 18% by the Commission is not justified. 19. We are satisfied that the action taken by the Insurance Co. was within reasonable time. Therefore, it cannot be saddled with a high rate of interest @ 18%. However Insurance Companies should have speed up disposal of claims in order to inspire greater confidence in them. Be that as it may, since the amount was received by the claimant in 1994, therefore, levy of interest @ 18% does not appear to be justified. Hence, we set aside the order awarding interest @ 18% per annum. Similarly a levy of cost of litigation of Rs. 10,000/- also does not appear to be justified in the present case as in view of our finding above. Hence, we allow the C.A. No. 6063/1999 filed by National Insurance Company and set aside the order of the Commission. 20. | 1[ds]The Insurance Company by the communication dated 23rd April, 1992 agreed to only amendement to the extent of the name of the Bank, namely, Allahabad Bank as maortgagee and no further amendment was made in the original Policies. This was also confirmed by the evidence of sole witness Shri Samaresh Sarkar, Divisional Manager produced by the Insurance Company in evidence before the National Forum. No evidence was led by the complainant before the National Forum. Therefore, the question is how the correspondence and documents produced by both the parties are to be construed. But unfortunately the National Commission did not consider all these aspects and immediately rushed to direct to pay 75% of the loss assessed by thethe present case, they did not agree for amendment of the policies, if the complainant was vigilant and wanted this expression to be deleted he should have prosecuted the matter seriously or repudiated the Policy. The only defence pleaded was that they were assured orally but no evidence was led by complainant. On the contrary, suggestion was denied by single witness produced by the Insurance Company before Nationalin the present case when the proposal was sought to be amended and it was only agreed to by the Insurance Company to the extent substituting the Bank i.e. Allahabad Bank and the other amendments were not agreed by the Insurance Company, the complainant had a choice to repudiate the insurance policy or to obtain a proper declaration. But the complainant did not pursue the matter further, it is to be blamed itself forafter construing the terms of the contract it transpires that the intention between the parties was to cover the plant and machinery which were lying in the factory, i.e., in the covered area and in the shed and not the goods which were lying outside the covered area. Therefore the order of the Commission directing the payment of 75% of the assessment made by the Surveyor of the goods which were lying inside and outside the factory was not correct approach on the part of the Commission. The Commission should have examined the matter in detail in terms of the policy and the relevant documents bearing on the subject. This was not done. Therefore, we have no hesitation to say that what was sought to be covered by both the Policies was only plant and machinery in shed and not the goods which were lying outside the plant andnext question is with regard to award of interest. As per the guidelines laid down, the Insurance Company had to settle the claim within two months of the Surveyors Report. The reason for delay has been explained. Since the fire took place on 13th January, 1993, the Insurance Company appointed the Surveyor and Surveyor sent his report. dated November 5, 1993 which was received by the appellant on November 9, 1993. Since there was some discrepancies in the survey report, the Insurance Company vide their letter dated December 14, 1993 sought clarification from the surveyors which was replied on 22.4.94 by the Surveyors. The Insurance Company after that took the decision and informed the claimant vide their letter dated 1.7.94 for approval of the claim for Rs. 20,23,899/under both the polices. Therefore, it was submitted that almost within stipulated time the intimation was sent to them, as such the levy of interest @ 18% by the Commission is not justified.We are satisfied that the action taken by the Insurance Co. was within reasonable time. Therefore, it cannot be saddled with a high rate of interest @ 18%. However Insurance Companies should have speed up disposal of claims in order to inspire greater confidence in them. Be that as it may, since the amount was received by the claimant in 1994, therefore, levy of interest @ 18% does not appear to be justified. Hence, we set aside the order awarding interest @ 18% per annum. Similarly a levy of cost of litigation of Rs. 10,000/also does not appear to be justified in the present case as in view of our finding above. Hence, we allow the C.A. No. 6063/1999 filed by National Insurance Company and set aside the order of the Commission. | 1 | 4,818 | 765 | ### 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:
complainant wanted some amendments in both policies i.e. coverage of goods lying outside plant including the expression factory ‘cum- godown as there was no godown in existence but those amendments were not agreed to by the insurance company, they only agreed to make amendment of incorporation of name of the Bank, i.e., Allahabad Bank in the Policy. When the terms of the contract have been reduced in writing it cannot be changed without the mutual agreement by way of both the parties. In the present case, they did not agree for amendment of the policies, if the complainant was vigilant and wanted this expression to be deleted he should have prosecuted the matter seriously or repudiated the Policy. The only defence pleaded was that they were assured orally but no evidence was led by complainant. On the contrary, suggestion was denied by single witness produced by the Insurance Company before National Forum. In this connection, our attention was invited to decision of this Court in the case of United India Insurance Co. Ltd. Vs. M. K. J. Corporation reported in (1996) 6 SCC 428 wherein it was observed as under: "..After the completion of the contract, no material alteration can be made in its terms except by mutual consent." 15. Therefore, in the present case when the proposal was sought to be amended and it was only agreed to by the Insurance Company to the extent substituting the Bank i.e. Allahabad Bank and the other amendments were not agreed by the Insurance Company, the complainant had a choice to repudiate the insurance policy or to obtain a proper declaration. But the complainant did not pursue the matter further, it is to be blamed itself for this. 16. Therefore, after construing the terms of the contract it transpires that the intention between the parties was to cover the plant and machinery which were lying in the factory, i.e., in the covered area and in the shed and not the goods which were lying outside the covered area. Therefore the order of the Commission directing the payment of 75% of the assessment made by the Surveyor of the goods which were lying inside and outside the factory was not correct approach on the part of the Commission. The Commission should have examined the matter in detail in terms of the policy and the relevant documents bearing on the subject. This was not done. Therefore, we have no hesitation to say that what was sought to be covered by both the Policies was only plant and machinery in shed and not the goods which were lying outside the plant and shed. 17. Next question is whether the reduction of the amount by insurance company under various heads is justified or not? We have gone through the reasons given by the Insurance Company for reducing the amount and we are of the opinion that the reasons given by the Insurance Company appear to be reasonable and justified which read as under:- "1. Though surveyor assessed the total loss on building as Rs. 5,52,049/- but while computing we only accepted Rs. 4,97,049/- as the balance amount of Rs. 55,000/- is assessment relating to the portion which is not inside the building.2. Regarding plant and machinery though the surveyor assessed Rs. 24,61,757/- but we considered Rs. 14,97,651/- and rest Rs. 9,64,106/- was related to the assessment of the plant and machinery installed outside the building.3. Regarding assessment of furniture, fixture and fittings though you mentioned that the surveyor assessed Rs. 1,76,820/- but it did not appear true according to the survey report the surveyor assessed only Rs. 1,55,820/-. But we could consider to the tune of Rs. 87,320/- as the business amount of Rs. 68,500/- was related to the portion kept outside the building.Under SSP Policy though the surveyor assessed Rs. 16,17,212/- but we could consider only (i) Hydraulic Oil (630 litres) amounting to Rs.11,100/- and (ii) H.S.D. in barrel (1081 litres) amounting to Rs. 2624/- aggregating to Rs. 13,724/- and rest of the items assessed by surveyor were beyond the scope of cover and not within the purview of the policy." Therefore, on this account also we do not find any merit to interfere in the matter. 18. The next question is with regard to award of interest. As per the guidelines laid down, the Insurance Company had to settle the claim within two months of the Surveyors Report. The reason for delay has been explained. Since the fire took place on 13th January, 1993, the Insurance Company appointed the Surveyor and Surveyor sent his report. dated November 5, 1993 which was received by the appellant on November 9, 1993. Since there was some discrepancies in the survey report, the Insurance Company vide their letter dated December 14, 1993 sought clarification from the surveyors which was replied on 22.4.94 by the Surveyors. The Insurance Company after that took the decision and informed the claimant vide their letter dated 1.7.94 for approval of the claim for Rs. 20,23,899/- under both the polices. Therefore, it was submitted that almost within stipulated time the intimation was sent to them, as such the levy of interest @ 18% by the Commission is not justified. 19. We are satisfied that the action taken by the Insurance Co. was within reasonable time. Therefore, it cannot be saddled with a high rate of interest @ 18%. However Insurance Companies should have speed up disposal of claims in order to inspire greater confidence in them. Be that as it may, since the amount was received by the claimant in 1994, therefore, levy of interest @ 18% does not appear to be justified. Hence, we set aside the order awarding interest @ 18% per annum. Similarly a levy of cost of litigation of Rs. 10,000/- also does not appear to be justified in the present case as in view of our finding above. Hence, we allow the C.A. No. 6063/1999 filed by National Insurance Company and set aside the order of the Commission. 20.
### Response:
1
### Explanation:
The Insurance Company by the communication dated 23rd April, 1992 agreed to only amendement to the extent of the name of the Bank, namely, Allahabad Bank as maortgagee and no further amendment was made in the original Policies. This was also confirmed by the evidence of sole witness Shri Samaresh Sarkar, Divisional Manager produced by the Insurance Company in evidence before the National Forum. No evidence was led by the complainant before the National Forum. Therefore, the question is how the correspondence and documents produced by both the parties are to be construed. But unfortunately the National Commission did not consider all these aspects and immediately rushed to direct to pay 75% of the loss assessed by thethe present case, they did not agree for amendment of the policies, if the complainant was vigilant and wanted this expression to be deleted he should have prosecuted the matter seriously or repudiated the Policy. The only defence pleaded was that they were assured orally but no evidence was led by complainant. On the contrary, suggestion was denied by single witness produced by the Insurance Company before Nationalin the present case when the proposal was sought to be amended and it was only agreed to by the Insurance Company to the extent substituting the Bank i.e. Allahabad Bank and the other amendments were not agreed by the Insurance Company, the complainant had a choice to repudiate the insurance policy or to obtain a proper declaration. But the complainant did not pursue the matter further, it is to be blamed itself forafter construing the terms of the contract it transpires that the intention between the parties was to cover the plant and machinery which were lying in the factory, i.e., in the covered area and in the shed and not the goods which were lying outside the covered area. Therefore the order of the Commission directing the payment of 75% of the assessment made by the Surveyor of the goods which were lying inside and outside the factory was not correct approach on the part of the Commission. The Commission should have examined the matter in detail in terms of the policy and the relevant documents bearing on the subject. This was not done. Therefore, we have no hesitation to say that what was sought to be covered by both the Policies was only plant and machinery in shed and not the goods which were lying outside the plant andnext question is with regard to award of interest. As per the guidelines laid down, the Insurance Company had to settle the claim within two months of the Surveyors Report. The reason for delay has been explained. Since the fire took place on 13th January, 1993, the Insurance Company appointed the Surveyor and Surveyor sent his report. dated November 5, 1993 which was received by the appellant on November 9, 1993. Since there was some discrepancies in the survey report, the Insurance Company vide their letter dated December 14, 1993 sought clarification from the surveyors which was replied on 22.4.94 by the Surveyors. The Insurance Company after that took the decision and informed the claimant vide their letter dated 1.7.94 for approval of the claim for Rs. 20,23,899/under both the polices. Therefore, it was submitted that almost within stipulated time the intimation was sent to them, as such the levy of interest @ 18% by the Commission is not justified.We are satisfied that the action taken by the Insurance Co. was within reasonable time. Therefore, it cannot be saddled with a high rate of interest @ 18%. However Insurance Companies should have speed up disposal of claims in order to inspire greater confidence in them. Be that as it may, since the amount was received by the claimant in 1994, therefore, levy of interest @ 18% does not appear to be justified. Hence, we set aside the order awarding interest @ 18% per annum. Similarly a levy of cost of litigation of Rs. 10,000/also does not appear to be justified in the present case as in view of our finding above. Hence, we allow the C.A. No. 6063/1999 filed by National Insurance Company and set aside the order of the Commission.
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B.C. Kame Vs. Nemi Chand Jain | the following grounds only, namely:-(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from his within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner;X X X X X X"By sub-section (3), insofar as it is material, it is provided:"No order for the eviction of a tenant shall be made on the ground specified in clause (a) of sub-section (1), if the tenant makes payment or deposit as required by Section 13.X X X X X X"By Section 13 (1) it is provided:"On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 12, the tenant shall, within one month of the service of the writ of summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate."By sub-sections (5) and (6) it is provided:"(5) If a tenant makes deposit or payment as required by sub-section (1) or sub-section (2), no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant, but the Court may allow such cost as it may deem fit to the landlord.(6) If a tenant fails to deposit or pay any amount as required by this section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit."5. It is clearly intended thereby that for non-payment of rent, the tenancy shall not be terminated and the Court shall not pass a decree in ejectment if within two months of the date on which a notice of demand for rent has been served on the tenant he makes payment of the amount or tenders the amount of rent due by him to the landlord.If he does so, no suit will lie against him on the ground of default in the payment of rent. Even if no such payment is made within two months as provided by Section 12 (1) (a) the tenant may within one month from the service of the writ of summons deposit the amount in Court or pay to the landlord the amount due by him till then and continue to pay or deposit "month by month" the rent accruing due. Even if he does not pay the amount within one month he may on an application made by him ask for extension of time, and if the Court grants the extension the amount may be paid by him within such extended time. In such a case by virtue of sub-section (5) of Section 13, on the ground of default in payment of rent, the Court will not proceed to pass a decree in ejectment. But it is clear that under sub-section (1) of Section 13 the normal period during which the amount has to be paid to the landlord or deposited in Court is one month from the service of the writ of summons. If the tenant pays the amount of rent in arrears within one month he is immune from liability to be evicted for default in that behalf. If, however, he does not pay the amount or deposit it in Court, any subsequent payment made by him will come to his aid only if on an application made by him the Court extends the time.6. In the present case the defendant did not pay the rent due by him within one month from the date on which the amount of rent was payable by him. We need not consider the question, whether if the amount if paid on June 10, 1963, rent would have been deemed to be properly paid. The amount was deposited in Court on June 11, 1963. The deposit was clearly beyond time. The defendant made no application for extension of time and no order was made by the Court extending the time. Even after the first payment the defendant did not continue to pay regularly the amount of rent falling due by him during the pendency of the suit. It was only on July 28, 1965, that he applied for extension of time and the Court rejected the defendants prayer for extension.7. It is true that the learned District Judge in the course of his judgment mixed up the discussion on two different contentions, one with regard to striking out the defence of the defendant for nonpayment of rent, and the other relating to extension of time for payment of rent. But on a fair reading of the judgment it appears that he was of the view that on the facts before him no case was made out by the defendant for extension of time in exercise of the jurisdiction of the Court. The High Court declined to enter upon an enquiry whether the District Judge was right in so holding, because in the view of the High Court, in a revision application under Section 115 of the Code of Civil Procedure the decision of the District Court was binding.8. We are unable to agree with Mr. Patel that the District Court held that it had no jurisdiction to extend the time. The Court held that it had jurisdiction to extend the time but on merits no case was made out for an order extending the time. | 0[ds]4. The order passed by the District Court setting aside the judgment passed by the court of First Instance in respect of those premises in respect of which there was default in payment of rent was plainly erroneous and the High court was right in setting aside the order.In the present case the defendant did not pay the rent due by him within one month from the date on which the amount of rent was payable by him. We need not consider the question, whether if the amount if paid on June 10, 1963, rent would have been deemed to be properly paid. The amount was deposited in Court on June 11, 1963. The deposit was clearly beyond time. The defendant made no application for extension of time and no order was made by the Court extending the time. Even after the first payment the defendant did not continue to pay regularly the amount of rent falling due by him during the pendency of the suit. It was only on July 28, 1965, that he applied for extension of time and the Court rejected the defendants prayer for extension.7. It is true that the learned District Judge in the course of his judgment mixed up the discussion on two different contentions, one with regard to striking out the defence of the defendant for nonpayment of rent, and the other relating to extension of time for payment of rent. But on a fair reading of the judgment it appears that he was of the view that on the facts before him no case was made out by the defendant for extension of time in exercise of the jurisdiction of the Court. The High Court declined to enter upon an enquiry whether the District Judge was right in so holding, because in the view of the High Court, in a revision application under Section 115 of the Code of Civil Procedure the decision of the District Court was binding.8. We are unable to agree with Mr. Patel that the District Court held that it had no jurisdiction to extend the time. The Court held that it had jurisdiction to extend the time but on merits no case was made out for an order extending the time. | 0 | 2,064 | 401 | ### 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 following grounds only, namely:-(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from his within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner;X X X X X X"By sub-section (3), insofar as it is material, it is provided:"No order for the eviction of a tenant shall be made on the ground specified in clause (a) of sub-section (1), if the tenant makes payment or deposit as required by Section 13.X X X X X X"By Section 13 (1) it is provided:"On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 12, the tenant shall, within one month of the service of the writ of summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate."By sub-sections (5) and (6) it is provided:"(5) If a tenant makes deposit or payment as required by sub-section (1) or sub-section (2), no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant, but the Court may allow such cost as it may deem fit to the landlord.(6) If a tenant fails to deposit or pay any amount as required by this section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit."5. It is clearly intended thereby that for non-payment of rent, the tenancy shall not be terminated and the Court shall not pass a decree in ejectment if within two months of the date on which a notice of demand for rent has been served on the tenant he makes payment of the amount or tenders the amount of rent due by him to the landlord.If he does so, no suit will lie against him on the ground of default in the payment of rent. Even if no such payment is made within two months as provided by Section 12 (1) (a) the tenant may within one month from the service of the writ of summons deposit the amount in Court or pay to the landlord the amount due by him till then and continue to pay or deposit "month by month" the rent accruing due. Even if he does not pay the amount within one month he may on an application made by him ask for extension of time, and if the Court grants the extension the amount may be paid by him within such extended time. In such a case by virtue of sub-section (5) of Section 13, on the ground of default in payment of rent, the Court will not proceed to pass a decree in ejectment. But it is clear that under sub-section (1) of Section 13 the normal period during which the amount has to be paid to the landlord or deposited in Court is one month from the service of the writ of summons. If the tenant pays the amount of rent in arrears within one month he is immune from liability to be evicted for default in that behalf. If, however, he does not pay the amount or deposit it in Court, any subsequent payment made by him will come to his aid only if on an application made by him the Court extends the time.6. In the present case the defendant did not pay the rent due by him within one month from the date on which the amount of rent was payable by him. We need not consider the question, whether if the amount if paid on June 10, 1963, rent would have been deemed to be properly paid. The amount was deposited in Court on June 11, 1963. The deposit was clearly beyond time. The defendant made no application for extension of time and no order was made by the Court extending the time. Even after the first payment the defendant did not continue to pay regularly the amount of rent falling due by him during the pendency of the suit. It was only on July 28, 1965, that he applied for extension of time and the Court rejected the defendants prayer for extension.7. It is true that the learned District Judge in the course of his judgment mixed up the discussion on two different contentions, one with regard to striking out the defence of the defendant for nonpayment of rent, and the other relating to extension of time for payment of rent. But on a fair reading of the judgment it appears that he was of the view that on the facts before him no case was made out by the defendant for extension of time in exercise of the jurisdiction of the Court. The High Court declined to enter upon an enquiry whether the District Judge was right in so holding, because in the view of the High Court, in a revision application under Section 115 of the Code of Civil Procedure the decision of the District Court was binding.8. We are unable to agree with Mr. Patel that the District Court held that it had no jurisdiction to extend the time. The Court held that it had jurisdiction to extend the time but on merits no case was made out for an order extending the time.
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0
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4. The order passed by the District Court setting aside the judgment passed by the court of First Instance in respect of those premises in respect of which there was default in payment of rent was plainly erroneous and the High court was right in setting aside the order.In the present case the defendant did not pay the rent due by him within one month from the date on which the amount of rent was payable by him. We need not consider the question, whether if the amount if paid on June 10, 1963, rent would have been deemed to be properly paid. The amount was deposited in Court on June 11, 1963. The deposit was clearly beyond time. The defendant made no application for extension of time and no order was made by the Court extending the time. Even after the first payment the defendant did not continue to pay regularly the amount of rent falling due by him during the pendency of the suit. It was only on July 28, 1965, that he applied for extension of time and the Court rejected the defendants prayer for extension.7. It is true that the learned District Judge in the course of his judgment mixed up the discussion on two different contentions, one with regard to striking out the defence of the defendant for nonpayment of rent, and the other relating to extension of time for payment of rent. But on a fair reading of the judgment it appears that he was of the view that on the facts before him no case was made out by the defendant for extension of time in exercise of the jurisdiction of the Court. The High Court declined to enter upon an enquiry whether the District Judge was right in so holding, because in the view of the High Court, in a revision application under Section 115 of the Code of Civil Procedure the decision of the District Court was binding.8. We are unable to agree with Mr. Patel that the District Court held that it had no jurisdiction to extend the time. The Court held that it had jurisdiction to extend the time but on merits no case was made out for an order extending the time.
|
Desiya Murpokku Dravida Kazhagam Vs. Election Commission Of India | in Rama Kant Pandey Vs. Union of India [(1993) 2 SCC 438] , while holding that creation of distinction between candidates of recognized parties and other candidates, though alleged to be artificial, inconsistent with the spirit of election law, discriminatory, giving important and special treatment to party system in democracy, was quite proper and that political parties constitute a class from other candidates and hence Articles 14, 19 and 21 were not violated in the facts of the case. It was also observed that the right to vote or to stand as a candidate and contest an election is not a fundamental right or even civil right, but a purely statutory right, as is the right to be elected. It was also urged that even the right to dispute an application was a statutory right emerging from the Representation of the People Act, 1951. According to Ms. Arora, outside the Statute, there is no right to elect, no right to be elected and no right to dispute an election. It was submitted that these rights were the creation of a Statute and were, therefore, subject to statutory limitations, as no fundamental right was involved.30. Ms. Arora submitted that the Election Symbols Order, 1968, concerns registered parties, recognised and non-recognised parties and independent candidates. Learned counsel urged that paragraph 2(h) of the Election Symbols Order, 1968, defines ‘political party’ to be an association of a body of individual citizens of India, registered with the Commission as a political party under Section 29-A of the Representation of the People Act, 1951, which as mentioned herein earlier, deals with registration of association of bodies as political parties with the Election Commission. Ms. Arora submitted that since the provisions of paragraph 6A, 6B and 6C of the Election Symbols Order, 1968, have been held to be valid, they could not be departed from and the political party would, therefore, be bound by whatever amendments that may have been brought to the Election Symbols Order, 1968. Ms. Arora urged that although freedom of expression was a fundamental right within the meaning of Article 19(1)(a) of the Constitution, the right to vote was a statutory right which could not be questioned by way of a Writ Petition so long as said right remained in the statute book.31. The submissions made on behalf of the writ petitioners regarding the constitutional validity of the Election Symbols Order, 1968, and the power of the Election Commission to settle issues relating to claims of splinter groups to be the original party, had fallen for the decision of this Court about forty years ago in Sadiq Ali’s case, when this Court had occasion to observe that the Election Commission had been clothed with plenary power by Rules 5 and 10 of the Conduct of Election Rules, 1961, in the matter of conducting of elections, which included the power to allot symbols to candidates during elections. The challenge to the vires of the Symbols Order, 1968, was, accordingly, repelled.32. The view in Sadiq Ali’s case has since been followed in the All Party Hill Leaders’ Conference case (supra), Roop Lal Sathi’s case (supra), Kanhiya Lal Omar’s case (supra) and as recently as in Subramanian Swamy’s case (supra), to which reference has been made in the earlier part of this judgment, where the provisions of Article 324 of the Constitution vesting the superintendence, direction and control of elections, were considered in detail and it was, inter alia, held that in addition to Rules 5 and 10 of the Conduct of Election Rules, 1961, the powers vested in the Election Commission could be traced to Article 324 of the Constitution.33. The evolution of the law relating to the criteria for a political party to be recognized as a State Party clearly indicates that the Election Commission, in its wisdom, was of the view that in order to be recognized as a political party, such party should have achieved a certain bench-mark in State politics. Nothing new has been brought out in the submissions made on behalf of the writ petitioners which could make us take a different view from what has been decided earlier. Mr. Venugopal’s submissions regarding political parties winning a larger number of seats while polling a lesser percentage of the votes, sounds attractive, but has to be discarded. Mr. Venugopal’s submissions are in relation to the poll performance of the larger parties within a State where even a vote swing of 2 to 5 per cent could cause a huge difference in the seats won by a political party. A three or four-cornered contest could lead to a splitting of the majority of the votes so that a candidate with a minority share of the votes polled could emerge victorious. The Election Commission has set down a bench-mark which is not unreasonable. In order to gain recognition as a political party, a party has to prove itself and to establish its credibility as a serious player in the political arena of the State. Once it succeeds in doing so, it will become entitled to all the benefits of recognition, including the allotment of a common symbol.34. There cannot be any difference of opinion that, as was laid down in Union of India Vs. Association for Democratic Reforms (supra), a voter has the right to know the antecedents of the candidates, a view which was later reiterated by this Court in Peoplebs Union for Civil Liberties (supra), but such right has to be balanced with the ground realities of conducting a State-wide poll. The Election Commission has kept the said balance in mind while setting the bench-marks to be achieved by a political party in order to be recognized as a State Party and become eligible to be given a common election symbol. We do not see any variance between the views expressed by the Constitution Bench in the PUCL case and the amendments effected by the Election Commission to the Election Symbols Order, 1968, by its Notification dated 1st December, 2000. | 0[ds]31. The submissions made on behalf of the writ petitioners regarding the constitutional validity of the Election Symbols Order, 1968, and the power of the Election Commission to settle issues relating to claims of splinter groups to be the original party, had fallen for the decision of this Court about forty years ago in Sadiqcase, when this Court had occasion to observe that the Election Commission had been clothed with plenary power by Rules 5 and 10 of the Conduct of Election Rules, 1961, in the matter of conducting of elections, which included the power to allot symbols to candidates during elections. The challenge to the vires of the Symbols Order, 1968, was, accordingly, repelled.32. The view in Sadiqcase has since been followed in the All Party HillConference case (supra), Roop Lalcase (supra), Kanhiya Lalcase (supra) and as recently as in Subramaniancase (supra), to which reference has been made in the earlier part of this judgment, where the provisions of Article 324 of the Constitution vesting the superintendence, direction and control of elections, were considered in detail and it was, inter alia, held that in addition to Rules 5 and 10 of the Conduct of Election Rules, 1961, the powers vested in the Election Commission could be traced to Article 324 of the Constitution.33. The evolution of the law relating to the criteria for a political party to be recognized as a State Party clearly indicates that the Election Commission, in its wisdom, was of the view that in order to be recognized as a political party, such party should have achieved a certain bench-mark in State politics. Nothing new has been brought out in the submissions made on behalf of the writ petitioners which could make us take a different view from what has been decided earlier. Mr.submissions regarding political parties winning a larger number of seats while polling a lesser percentage of the votes, sounds attractive, but has to be discarded. Mr.submissions are in relation to the poll performance of the larger parties within a State where even a vote swing of 2 to 5 per cent could cause a huge difference in the seats won by a political party. A three or four-cornered contest could lead to a splitting of the majority of the votes so that a candidate with a minority share of the votes polled could emerge victorious. The Election Commission has set down a bench-mark which is not unreasonable. In order to gain recognition as a political party, a party has to prove itself and to establish its credibility as a serious player in the political arena of the State. Once it succeeds in doing so, it will become entitled to all the benefits of recognition, including the allotment of a common symbol.34. There cannot be any difference of opinion that, as was laid down in Union of India Vs. Association for Democratic Reforms (supra), a voter has the right to know the antecedents of the candidates, a view which was later reiterated by this Court in Peoplebs Union for Civil Liberties (supra), but such right has to be balanced with the ground realities of conducting a State-wide poll. The Election Commission has kept the said balance in mind while setting the bench-marks to be achieved by a political party in order to be recognized as a State Party and become eligible to be given a common election symbol. We do not see any variance between the views expressed by the Constitution Bench in the PUCL case and the amendments effected by the Election Commission to the Election Symbols Order, 1968, by its Notification dated 1st December, 2000. | 0 | 7,425 | 672 | ### 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:
in Rama Kant Pandey Vs. Union of India [(1993) 2 SCC 438] , while holding that creation of distinction between candidates of recognized parties and other candidates, though alleged to be artificial, inconsistent with the spirit of election law, discriminatory, giving important and special treatment to party system in democracy, was quite proper and that political parties constitute a class from other candidates and hence Articles 14, 19 and 21 were not violated in the facts of the case. It was also observed that the right to vote or to stand as a candidate and contest an election is not a fundamental right or even civil right, but a purely statutory right, as is the right to be elected. It was also urged that even the right to dispute an application was a statutory right emerging from the Representation of the People Act, 1951. According to Ms. Arora, outside the Statute, there is no right to elect, no right to be elected and no right to dispute an election. It was submitted that these rights were the creation of a Statute and were, therefore, subject to statutory limitations, as no fundamental right was involved.30. Ms. Arora submitted that the Election Symbols Order, 1968, concerns registered parties, recognised and non-recognised parties and independent candidates. Learned counsel urged that paragraph 2(h) of the Election Symbols Order, 1968, defines ‘political party’ to be an association of a body of individual citizens of India, registered with the Commission as a political party under Section 29-A of the Representation of the People Act, 1951, which as mentioned herein earlier, deals with registration of association of bodies as political parties with the Election Commission. Ms. Arora submitted that since the provisions of paragraph 6A, 6B and 6C of the Election Symbols Order, 1968, have been held to be valid, they could not be departed from and the political party would, therefore, be bound by whatever amendments that may have been brought to the Election Symbols Order, 1968. Ms. Arora urged that although freedom of expression was a fundamental right within the meaning of Article 19(1)(a) of the Constitution, the right to vote was a statutory right which could not be questioned by way of a Writ Petition so long as said right remained in the statute book.31. The submissions made on behalf of the writ petitioners regarding the constitutional validity of the Election Symbols Order, 1968, and the power of the Election Commission to settle issues relating to claims of splinter groups to be the original party, had fallen for the decision of this Court about forty years ago in Sadiq Ali’s case, when this Court had occasion to observe that the Election Commission had been clothed with plenary power by Rules 5 and 10 of the Conduct of Election Rules, 1961, in the matter of conducting of elections, which included the power to allot symbols to candidates during elections. The challenge to the vires of the Symbols Order, 1968, was, accordingly, repelled.32. The view in Sadiq Ali’s case has since been followed in the All Party Hill Leaders’ Conference case (supra), Roop Lal Sathi’s case (supra), Kanhiya Lal Omar’s case (supra) and as recently as in Subramanian Swamy’s case (supra), to which reference has been made in the earlier part of this judgment, where the provisions of Article 324 of the Constitution vesting the superintendence, direction and control of elections, were considered in detail and it was, inter alia, held that in addition to Rules 5 and 10 of the Conduct of Election Rules, 1961, the powers vested in the Election Commission could be traced to Article 324 of the Constitution.33. The evolution of the law relating to the criteria for a political party to be recognized as a State Party clearly indicates that the Election Commission, in its wisdom, was of the view that in order to be recognized as a political party, such party should have achieved a certain bench-mark in State politics. Nothing new has been brought out in the submissions made on behalf of the writ petitioners which could make us take a different view from what has been decided earlier. Mr. Venugopal’s submissions regarding political parties winning a larger number of seats while polling a lesser percentage of the votes, sounds attractive, but has to be discarded. Mr. Venugopal’s submissions are in relation to the poll performance of the larger parties within a State where even a vote swing of 2 to 5 per cent could cause a huge difference in the seats won by a political party. A three or four-cornered contest could lead to a splitting of the majority of the votes so that a candidate with a minority share of the votes polled could emerge victorious. The Election Commission has set down a bench-mark which is not unreasonable. In order to gain recognition as a political party, a party has to prove itself and to establish its credibility as a serious player in the political arena of the State. Once it succeeds in doing so, it will become entitled to all the benefits of recognition, including the allotment of a common symbol.34. There cannot be any difference of opinion that, as was laid down in Union of India Vs. Association for Democratic Reforms (supra), a voter has the right to know the antecedents of the candidates, a view which was later reiterated by this Court in Peoplebs Union for Civil Liberties (supra), but such right has to be balanced with the ground realities of conducting a State-wide poll. The Election Commission has kept the said balance in mind while setting the bench-marks to be achieved by a political party in order to be recognized as a State Party and become eligible to be given a common election symbol. We do not see any variance between the views expressed by the Constitution Bench in the PUCL case and the amendments effected by the Election Commission to the Election Symbols Order, 1968, by its Notification dated 1st December, 2000.
### Response:
0
### Explanation:
31. The submissions made on behalf of the writ petitioners regarding the constitutional validity of the Election Symbols Order, 1968, and the power of the Election Commission to settle issues relating to claims of splinter groups to be the original party, had fallen for the decision of this Court about forty years ago in Sadiqcase, when this Court had occasion to observe that the Election Commission had been clothed with plenary power by Rules 5 and 10 of the Conduct of Election Rules, 1961, in the matter of conducting of elections, which included the power to allot symbols to candidates during elections. The challenge to the vires of the Symbols Order, 1968, was, accordingly, repelled.32. The view in Sadiqcase has since been followed in the All Party HillConference case (supra), Roop Lalcase (supra), Kanhiya Lalcase (supra) and as recently as in Subramaniancase (supra), to which reference has been made in the earlier part of this judgment, where the provisions of Article 324 of the Constitution vesting the superintendence, direction and control of elections, were considered in detail and it was, inter alia, held that in addition to Rules 5 and 10 of the Conduct of Election Rules, 1961, the powers vested in the Election Commission could be traced to Article 324 of the Constitution.33. The evolution of the law relating to the criteria for a political party to be recognized as a State Party clearly indicates that the Election Commission, in its wisdom, was of the view that in order to be recognized as a political party, such party should have achieved a certain bench-mark in State politics. Nothing new has been brought out in the submissions made on behalf of the writ petitioners which could make us take a different view from what has been decided earlier. Mr.submissions regarding political parties winning a larger number of seats while polling a lesser percentage of the votes, sounds attractive, but has to be discarded. Mr.submissions are in relation to the poll performance of the larger parties within a State where even a vote swing of 2 to 5 per cent could cause a huge difference in the seats won by a political party. A three or four-cornered contest could lead to a splitting of the majority of the votes so that a candidate with a minority share of the votes polled could emerge victorious. The Election Commission has set down a bench-mark which is not unreasonable. In order to gain recognition as a political party, a party has to prove itself and to establish its credibility as a serious player in the political arena of the State. Once it succeeds in doing so, it will become entitled to all the benefits of recognition, including the allotment of a common symbol.34. There cannot be any difference of opinion that, as was laid down in Union of India Vs. Association for Democratic Reforms (supra), a voter has the right to know the antecedents of the candidates, a view which was later reiterated by this Court in Peoplebs Union for Civil Liberties (supra), but such right has to be balanced with the ground realities of conducting a State-wide poll. The Election Commission has kept the said balance in mind while setting the bench-marks to be achieved by a political party in order to be recognized as a State Party and become eligible to be given a common election symbol. We do not see any variance between the views expressed by the Constitution Bench in the PUCL case and the amendments effected by the Election Commission to the Election Symbols Order, 1968, by its Notification dated 1st December, 2000.
|
Chariman & M.D.,Bharat Pet.Corpn.Ltd&Ors Vs. T.K. Raju | do anything which could be unbecoming of its Management Staff. Clause 22 of Part II of the Rules categorically debars an employee from raising any loan in the following terms: No Management Staff of the Corporation shall, save in the ordinary course of business with a bank, the Life Insurance Corporation or a firm of standing, borrow money from or lend money to or otherwise place himself under pecuniary obligation to any person with whom he has or is likely to have official dealings or permit any such borrowing, lending or pecuniary obligation in his name or for his benefit or for the benefit of any member of his family. 11. The Respondent admittedly was not only charged under clause (4) of Part III of the Rules , he was also charged for various other misconducts enumerated in different clauses of Part II thereof. The High Court, therefore, was not justified in proceeding with the matter on the premise that some of the charges against the Respondent had been framed only in terms of clause (4) of Part II of the Rules. 12. In Kalra (supra), the misconduct alleged against the delinquent was trivial. Report against him was found to be on ipse dixit. It was held that Rule 4(1)(i) did not specify that its violation will constitute misconduct. It was opined that the delinquent did not commit any misconduct by violating Advance Rules. In that situation, it was observed that how did the question of integrity arises passes our comprehension. It was held: To sum up the order of removal passed by the disciplinary authority is illegal and invalid for the reasons: (i) that the action is thoroughly arbitrary and is violative of Article 14, (ii) that the alleged misconduct does not constitute misconduct within the 1975 Rules, (iii) that the inquiry officer himself found that punishment was already imposed for the alleged misconduct by withholding the salary and the appellant could not be exposed to double jeopardy, and (iv) that the findings of the inquiry officer are unsupported by reasons and the order of the disciplinary authority as well as the Appellate Authority suffer from the same vice. Therefore, the order of removal from service as well as the appellate order are quashed and set aside. 13. Glaxo (supra) was also rendered in the fact situation obtaining therein. 14. It is not in dispute that misconduct is a generic term. 15. In State of Punjab and Others v. Ram Singh Ex. Constable [(1992) 4 SCC 54] it was stated: - Misconduct has been defined in Blacks Law Dictionary, Sixth Edition at page 999 thus: A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. 16. Misconduct in office has been defined as: Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. 17. In P. Ramanatha Aiyars Advanced Law Lexicon, 3rd edition, at page 3026, the term Misconduct has been defined as under: The term misconduct implies a wrongful intention and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. 18. More than one occasion, different courts have taken pains to explain that Kalra (supra) does not lay down any inflexible rule. [See Probodh Kumar Bhowmick v. University of Calcutta & Ors., 1994 (2) C.L.J. 456, Tara Chand v. Union of India and Ors. CWP 5552 /2000 disposed of on 27th August, 2002 (Delhi High Court), Secretary to Government and Others v. A.C.J. Britto, 1997) 3 SCC 387 and Noratanmal Chouraria v. M.R. Murli and Another (2004) 5 SCC 689 ]. 19. In the aforementioned situation, the High Court in our opinion committed a manifest error in relying upon Kalra (supra) and Glaxo (supra), as we have noticed hereinbefore, that the Respondent was not charged in terms of the Rules alone. He was charged for violation of several other clauses of the Rules. The High Court, therefore, was not correct in coming to the conclusion that as some of the charges were vague and indefinite, thus, no punishment could have been imposed on the basis thereof. 20. We also do not agree with the submission of Mr. Krishnamani that two of the eight charges have not been found to be proved. The charges levelled against the Respondent must be considered on a holistic basis. By reason of such an action, the Respondent had put the company in embarrassment. It might have lost its image. It received complaints from the Federation. There was reason for the Appellant to believe that by such an action on the part of the Respondent the Appellants image has been tarnished. In any event, neither the learned Single Judge nor the Division Bench came to any finding that none of the charges had been proved. 21. The power of judicial review in such matters is limited. This Court times without number had laid down that interference with the quantum of punishment should not be done in a routine manner. [See V. Ramana v. A.P.SRTC and Others, (2005) 7 SCC 338 , and State of Rajasthan & Anr. v. Mohammed Ayub Naz, 2006 (1) SCALE 79 ]. 22. Having regard to the facts and circumstances of this case, we are of the opinion that it cannot be said that the quantum of punishment was wholly disproportionate to the charges levelled against the Respondent. | 1[ds]19. In the aforementioned situation, the High Court in our opinion committed a manifest error in relying upon Kalra (supra) and Glaxo (supra), as we have noticed hereinbefore, that the Respondent was not charged in terms of the Rules alone. He was charged for violation of several other clauses of the Rules. The High Court, therefore, was not correct in coming to the conclusion that as some of the charges were vague and indefinite, thus, no punishment could have been imposed on the basis thereof20. We also do not agree with the submission of Mr. Krishnamani that two of the eight charges have not been found to be proved. The charges levelled against the Respondent must be considered on a holistic basis. By reason of such an action, the Respondent had put the company in embarrassment. It might have lost its image. It received complaints from the Federation. There was reason for the Appellant to believe that by such an action on the part of the Respondent the Appellants image has been tarnished. In any event, neither the learned Single Judge nor the Division Bench came to any finding that none of the charges had been proved21. The power of judicial review in such matters is limited. This Court times without number had laid down that interference with the quantum of punishment should not be done in a routine manner. [See V. Ramana v. A.P.SRTC and Others, (2005) 7 SCC 338 , and State of Rajasthan & Anr. v. Mohammed Ayub Naz, 2006 (1) SCALE 79 ]22. Having regard to the facts and circumstances of this case, we are of the opinion that it cannot be said that the quantum of punishment was wholly disproportionate to the charges levelled against the Respondent. | 1 | 3,128 | 335 | ### 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:
do anything which could be unbecoming of its Management Staff. Clause 22 of Part II of the Rules categorically debars an employee from raising any loan in the following terms: No Management Staff of the Corporation shall, save in the ordinary course of business with a bank, the Life Insurance Corporation or a firm of standing, borrow money from or lend money to or otherwise place himself under pecuniary obligation to any person with whom he has or is likely to have official dealings or permit any such borrowing, lending or pecuniary obligation in his name or for his benefit or for the benefit of any member of his family. 11. The Respondent admittedly was not only charged under clause (4) of Part III of the Rules , he was also charged for various other misconducts enumerated in different clauses of Part II thereof. The High Court, therefore, was not justified in proceeding with the matter on the premise that some of the charges against the Respondent had been framed only in terms of clause (4) of Part II of the Rules. 12. In Kalra (supra), the misconduct alleged against the delinquent was trivial. Report against him was found to be on ipse dixit. It was held that Rule 4(1)(i) did not specify that its violation will constitute misconduct. It was opined that the delinquent did not commit any misconduct by violating Advance Rules. In that situation, it was observed that how did the question of integrity arises passes our comprehension. It was held: To sum up the order of removal passed by the disciplinary authority is illegal and invalid for the reasons: (i) that the action is thoroughly arbitrary and is violative of Article 14, (ii) that the alleged misconduct does not constitute misconduct within the 1975 Rules, (iii) that the inquiry officer himself found that punishment was already imposed for the alleged misconduct by withholding the salary and the appellant could not be exposed to double jeopardy, and (iv) that the findings of the inquiry officer are unsupported by reasons and the order of the disciplinary authority as well as the Appellate Authority suffer from the same vice. Therefore, the order of removal from service as well as the appellate order are quashed and set aside. 13. Glaxo (supra) was also rendered in the fact situation obtaining therein. 14. It is not in dispute that misconduct is a generic term. 15. In State of Punjab and Others v. Ram Singh Ex. Constable [(1992) 4 SCC 54] it was stated: - Misconduct has been defined in Blacks Law Dictionary, Sixth Edition at page 999 thus: A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. 16. Misconduct in office has been defined as: Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. 17. In P. Ramanatha Aiyars Advanced Law Lexicon, 3rd edition, at page 3026, the term Misconduct has been defined as under: The term misconduct implies a wrongful intention and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. 18. More than one occasion, different courts have taken pains to explain that Kalra (supra) does not lay down any inflexible rule. [See Probodh Kumar Bhowmick v. University of Calcutta & Ors., 1994 (2) C.L.J. 456, Tara Chand v. Union of India and Ors. CWP 5552 /2000 disposed of on 27th August, 2002 (Delhi High Court), Secretary to Government and Others v. A.C.J. Britto, 1997) 3 SCC 387 and Noratanmal Chouraria v. M.R. Murli and Another (2004) 5 SCC 689 ]. 19. In the aforementioned situation, the High Court in our opinion committed a manifest error in relying upon Kalra (supra) and Glaxo (supra), as we have noticed hereinbefore, that the Respondent was not charged in terms of the Rules alone. He was charged for violation of several other clauses of the Rules. The High Court, therefore, was not correct in coming to the conclusion that as some of the charges were vague and indefinite, thus, no punishment could have been imposed on the basis thereof. 20. We also do not agree with the submission of Mr. Krishnamani that two of the eight charges have not been found to be proved. The charges levelled against the Respondent must be considered on a holistic basis. By reason of such an action, the Respondent had put the company in embarrassment. It might have lost its image. It received complaints from the Federation. There was reason for the Appellant to believe that by such an action on the part of the Respondent the Appellants image has been tarnished. In any event, neither the learned Single Judge nor the Division Bench came to any finding that none of the charges had been proved. 21. The power of judicial review in such matters is limited. This Court times without number had laid down that interference with the quantum of punishment should not be done in a routine manner. [See V. Ramana v. A.P.SRTC and Others, (2005) 7 SCC 338 , and State of Rajasthan & Anr. v. Mohammed Ayub Naz, 2006 (1) SCALE 79 ]. 22. Having regard to the facts and circumstances of this case, we are of the opinion that it cannot be said that the quantum of punishment was wholly disproportionate to the charges levelled against the Respondent.
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19. In the aforementioned situation, the High Court in our opinion committed a manifest error in relying upon Kalra (supra) and Glaxo (supra), as we have noticed hereinbefore, that the Respondent was not charged in terms of the Rules alone. He was charged for violation of several other clauses of the Rules. The High Court, therefore, was not correct in coming to the conclusion that as some of the charges were vague and indefinite, thus, no punishment could have been imposed on the basis thereof20. We also do not agree with the submission of Mr. Krishnamani that two of the eight charges have not been found to be proved. The charges levelled against the Respondent must be considered on a holistic basis. By reason of such an action, the Respondent had put the company in embarrassment. It might have lost its image. It received complaints from the Federation. There was reason for the Appellant to believe that by such an action on the part of the Respondent the Appellants image has been tarnished. In any event, neither the learned Single Judge nor the Division Bench came to any finding that none of the charges had been proved21. The power of judicial review in such matters is limited. This Court times without number had laid down that interference with the quantum of punishment should not be done in a routine manner. [See V. Ramana v. A.P.SRTC and Others, (2005) 7 SCC 338 , and State of Rajasthan & Anr. v. Mohammed Ayub Naz, 2006 (1) SCALE 79 ]22. Having regard to the facts and circumstances of this case, we are of the opinion that it cannot be said that the quantum of punishment was wholly disproportionate to the charges levelled against the Respondent.
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Income Tax Officer, Kolar & Another Vs. Seghu Buchiah Setty | been issued even in respect of the smaller amount which is ultimately found to be the tax properly payable. That being so, the assessee was under an obligation to pay it by the date fixed and if he did not pay it by that date, he became a defaulter" see Ladhuram Taparia v. D. K. Ghosh, 1958-33 ITR 407 at pp. 423, 424: ((S) AIR 1957 Cal 667 at p. 675). With great respect I am unable to accede to this proposition and the conclusion based thereon that the default and its consequences continue even after the appellate order reducing the original assessment. How does the assessee know before the appellate order the smaller amount which he might ultimately be liable to pay? It would be curious if he did not know what he had to pay and could still have defaulted in paying it.17.The order of reduction must, in my opinion, necessarily have the effect of setting aside the original order as a whole. It does not simply strike out a few of the figures appearing in the original order. That would really be a case of rectification for which provision is made in S. 35 of the Act. What an appellate order does in a case of reduction is, as in the present case, to go into all the figures and arrive afresh at the assessable income which replaces the amount of the income arrived at by the Income-tax Officer. Therefore it seems to me that in all cases of an appellate order reducing the assessment the original order goes and if it goes, of course the notice of demand also falls to the ground and the default based thereupon also ceases to be default anymore. Suppose the appellate order itself stated that a smaller amount of tax was payable after it had reduced the figure of the assessable income at which the Income-tax Officer had arrived. Indeed I cannot imagine how else it can be expressed. After such an order the original order must go for the debt being one the two cannot exist together. If that order goes, all default arising out of it must also go.18. Therefore I think that on the Income-tax Officers order being revised in appeal, the default based on it and all consequential proceedings must be taken to have been superseded and fresh proceedings have to be started to realise the dues as found by revised order.19. Coming now to the present case, in view of the order made in it it seems to me impossible to contend that the original default continued. What happened in the present case was that on December 17, 1955 the Appellate Commissioner reduced the assessable income of the assessee as found by the Income-tax Officer by a large sum and directed him to recompute the tax due on the basis of the assessable income stated in the appellate order. The assessee was not informed about the recomputed amount of tax till February 14, 1956. The assessee had not paid the tax mentioned in the Income-tax Officer order. If he had done that then he would under the express terms of the appellate order have become entitled to a refund. What then was the position between these two dates? If the revenue authorities are right, then the assessee continued to be in default even after the appellate order. But what was the amount in respect of which he was so in default? Clearly he could not have continued to be in default in respect of the amount found due by the Income-tax Officer in his original order for that amount was no longer due. He could not have been in default in respect of the amount which was found due on recomputation by the Income-tax Officer according to the direction of the Appellate Commissioner because he did now know that amount. It would be absurd if the Act contemplated a default without the assessee knowing the amount in respect of which the default occurred and without his having a chance to pay it. It would be impossible to construe the Act in a way to produce that result. It has, therefore, to be held that between the date of the appellate order and the communication of the recomputed amount of the tax to the assessee by the Income-tax Officer there could be no default. Since the Act does not provide for a default being in suspension for a period it must be held that the original default ceased to exist after the appellate order was made. Proceedings initiated on the original default before the appellate order could not, therefore, be continued any more. Indeed the appellate order superseded the original order and its consequences.20. If the effect of an appellate order reducing the assessment as in the present case did not wipe out the original order, a most anomalous situation would, in my view, arise. Under S. 46(1) of the Act after a default has been committed in terms of S. 45(1) the Income-tax Officer may impose a penalty not exceeding the amount of the tax due in respect of which the default has occurred. This penalty may be recovered in the same way as the tax due, that is to say, by a notice under S. 29 and thereafter by a certificate issued under S. 46(2). Now suppose the penalty for the full amount of the tax found due by the Income-tax Officer has been imposed and thereafter the appellate order reduces the amount of the tax. What happens to the order of penalty then? Obviously it does not automatically stand reduced to the reduced amount of the tax. It would again be absurd if the penalty could be recovered for the full original amount. The only sensible view to take in such a case would be that the order of penalty falls to the ground and the only logical way to support that conclusion would be to say that the original default has disappeared. | 0[ds]It will be noticed that this section is not confined to the effect of a failure to comply with the terms of a notice of demand issued under S. 29 but makes the same consequence arise on the failure to carry out the terms of a notice under S. 23A(3) and orders under Sections 31 and 33. That consequence is that the assessee is to be deemed to be in default. It is after an assessee is so in default that coercive processes for realisation of the amount due start. Provision for this is made in S. 46 to which I will immediately come. Before doing so, however, I wish to observe that S. 45 gives anOfficer on an appeal being filed a discretion to treat an assessee as not in default. An argument has been founded on this aspect of the section and to it I will later refer.I am unable to agree with this proposition. It may be that the Act contains no express provision stating what would happen to the default already incurred when the order under which it was incurred was later revised in appeal. But I think there is enough in the Act to indicate that in some of these cases at least the default comes to an end. If it does, it seems to me to follow inevitably that the consequences of the default also disappear.9. I would first refer to S. 45 which says that when an order under S. 31 specifies an amount as payable and the amount is not paid within the time, at the place and to the person mentioned in the order or where no time is mentioned in it, within the time specified in the section itself, the assessee so failing to pay shall be deemed to be in default. The order under S. 31 is an order by the Appellate Commissioner. If he specifies an amount as payable in his order and mentions the time when, the place where and the person to whom the payment is to be made thenwith that order would create a default. Now this order is made in an appeal from an order made by theOfficer. Suppose there is already a default as a result ofwith a notice under S. 29 given is respect of theOfficers order. As clearly there could not be two defaults for there was one liability, the Act must in such a case be taken to have provided by necessary implication that the default incurred as a result ofwith the notice to pay the amount mentioned in theOfficers order must be deemed to have been superseded by the appellate order. The contention that the Act does not contemplate a default ceasing to be so except when an assessment order is annulled by the appellate order, is, therefore, unfounded. Take another case. Suppose the appellate order says only that a different amount from that mentioned in theOfficers order shall be payable on income for a certain period without specifying the person to whom or the place where it is to be paid. The effect of it must be to wipe out theOfficers order since the two cannot exist together. In such a case along with the superseded order the default if any incurred in connection with it must also disappear. There will have to be a fresh notice under S. 29 in respect of the amount due under the appellate order on breach of which a fresh default may arise.10. It was, however, said that the Act nowhere requires the appellate order to state the amount payable or to specify the time, when, the place where and the person to whom it is to be paid. That may be so but that does not affect what I have said. Section 45 clearly contemplates the appellate order setting out these things and there is nothing in the Act to prevent the Appellate Commissioner from setting them out. Since S. 45 cannot be read as contemplating an impossibility, it must be held that the Appellate Commissioner may in his order specify the amount payable and state the other particulars about time of payment etc. If he can do so, that would be enough for my present purpose and it is not necessary for it that the Act must in every case require him to do so. In case where the appellate order specifies an amount as payable, theOfficers order must be deemed to have been superseded.11. One other argument to which I have to refer at this stage is that if the assessees contention be correct, then the discretion given to theOfficer by S. 45 not to treat an assessee in default becomes infructuous for then in every case on the making of the appellate order the default earlier incurred must disappear. This does not seem to me to put the position accurately. It is not in dispute that the filing of an appeal does not stay the operation of the original order. So if before the appellate order is made, the amount due is realised by the coercive process following the default, then those steps do not become invalid. There may be a liability to refund but nonetheless what was done was legal when done. Again it would, in my view, depend on the terms of the appellate order whether the earlier default was wiped out or not. If for example, the appellate order confirms the original order, then the default already incurred may not be affected. In both these cases the discretion to treat the assessee as a defaulter was effectively exercised. The argument that the acceptance of the assessees contention would render part of S. 45 nugatory and should, therefore, not be accepted, is in my opinion unsound.12. How then does the matter stand? It seems to me that the crux of it is the effect of the appellate order on the original order. If the original order has been destroyed or replaced by the appellate order, then the notice of demand and all other steps based upon the original order must be deemed to have become ineffective. In such a case the default earlier incurred must be taken to have disappeared and cannot support further action for recovery of any tax. Now the general proposition is that an original order merges in the appellate order: cp. Madan Gopal v. Secretary to the Government of Orissa, (1962) Supp 3 SCR 906: (AIR 1962 SC 1513 ). But in the present case, it is not necessary to rely on that proposition. Section 31 (3) of the Act seems to me to make express provision on the subject. It states that in the case of an appeal from an order of assessment, which is the kind of order with which we are now concerned, the Appellate Commissionerconfirm, reduce, or enhance or annual the assessment, or (b) set aside the assessment and direct theOfficer to make a fresh assessment after making such further enquiry as theOfficer thinks fit or the Appellate Assistant Commissioner may direct, and theOfficer shall thereupon proceed to make such fresh assessment and determine where necessary the amount of tax payable on the basis of such fresh assessment."There will, of course, be no occasion to determine the amount of the tax payable on the basis of the fresh assessment if the income on that assessment appears to be below the taxable level. I will consider the various orders contemplated by S. 31(3)(a) and (b) and their effect.13. It may be that when an appellate order confirms the original order, the default earlier incurred and all steps taken pursuant thereto remain unaffected, for such an order may maintain intact the original order. Now it is not in dispute that when the appellate order annuls the earlier order, the default disappears. It is said that that is because the debt ceases to exist. I do not quite follow thin. It has never been questioned that the debt becomes due when demand is made under S. 29 and S. 45 of the Act: see Doorga Prosad v. Secretary of State, 72 Ind App 114: (AIR 1945 PC 62). Therefore if a debt is to cease to exist it must be because the source from which it sprang, namely, the original order, has been annihilated by the appellate order annulling it. In fact Section 31 (3) (a) contemplates an annulment of the original assessment order itself; the demand under Section 29 or S. 45 is not annulled directly by it. Therefore, in the case of an order of annulment under S. 31 the original order of assessment is itself destroyed. If it disappears, I cannot conceive the default based on it continuing in force. Likewise, where under cl. (b) of S. 31(3) the appellate order sets aside the assessment, the same result must clearly follow. There is not much difference between annulling an order and setting it aside; both wipe out the original order.14. I now come to an appellate order enhancing the assessment. With regard to it, it has not been disputed that a fresh notice of demand must issue. If this notice has to be in respect of the entire amount, then clearly the default earlier incurred for the smaller amount found due by the original order must have gone for the liability was one and there could not be two defaults in respect of it. But it was said that the notice has to be issued in respect of the enhanced amount only. Indeed in some of the cases cited at the bar it has been so said. I have very grave doubts about the correctness of this view. The notice of demand can only issue in respect of the amount due in consequence of an order. Unless, therefore, the appellate order specifies only the enhanced amount as due I do not see how a notice in respect of that amount can be issued under S. 29. The appellate order has to specify an amount due. If it specifies the entire amount due including the enhancement, then it cannot be said that under it the amount of the enhancement only is due and not notice demanding such an amount only under S. 29 can be issued. If the appellate order specifies only the amount of the enhancement, it will be making an additional or supplementary assessment. Apart from S. 34 of the Act with which we are not now concerned. I am not aware of any other provision which permits such an assessment. In any case S. 31(3)(a) does not seem to me to contemplate it. Therefore, in my view when an order of enhancement of assessment is made under S. 31 the notice must be in respect of the entire amount and in such a case the earlier notice issued in respect of original order must be deemed to have been superseded.15. But assume I am wrong in this. Assume that an appellate order of enhancement may be confined to the amount of the enhancement only. Even so I am wholly unable to agree that the appellate order cannot specify the entire enhanced amount due. There is nothing in the Act to prevent this being done. When this is done then at least the original order and the notice must be deemed to have been put out of existence along with the default arising from thewith the latter and all its consequences.16. That leaves only the case of an appellate order reducing the amount. It seems to me that it would be somewhat curious if in all other cases excepting the case of a confirmation, the appellate order destroys the original order it does not do so in the case of a reduction. An order confirming may be different, for it confirms and, therefore, does nothas, however, been saidsubsequently the demand is modified on appeal and the amount of the tax payable is reduced, all that happens is that the liability sought to be imposed by the notice of demand, in respect of the amount by which the assessment is reduced is found to have never been a liability at all but the liability in respect of the remainder which stands unaffected by the appellate order remains" and also that "where a notice of the demand has, in fact, been issued in respect of a larger amount as determined by the assessment order, it has been issued even in respect of the smaller amount which is ultimately found to be the tax properly payable. That being so, the assessee was under an obligation to pay it by the date fixed and if he did not pay it by that date, he became a defaulter"e Ladhuram Taparia v. D. K. Ghosh,ITR 407 at pp. 423, 424: ((S) AIR 1957 Cal 667 at p. 675). With great respect I am unable to accede to this proposition and the conclusion based thereon that the default and its consequences continue even after the appellate order reducing the original assessment. How does the assessee know before the appellate order the smaller amount which he might ultimately be liable to pay? It would be curious if he did not know what he had to pay and could still have defaulted in paying it.17.The order of reduction must, in my opinion, necessarily have the effect of setting aside the original order as a whole. It does not simply strike out a few of the figures appearing in the original order. That would really be a case of rectification for which provision is made in S. 35 of the Act. What an appellate order does in a case of reduction is, as in the present case, to go into all the figures and arrive afresh at the assessable income which replaces the amount of the income arrived at by theOfficer. Therefore it seems to me that in all cases of an appellate order reducing the assessment the original order goes and if it goes, of course the notice of demand also falls to the ground and the default based thereupon also ceases to be default anymore. Suppose the appellate order itself stated that a smaller amount of tax was payable after it had reduced the figure of the assessable income at which theOfficer had arrived. Indeed I cannot imagine how else it can be expressed. After such an order the original order must go for the debt being one the two cannot exist together. If that order goes, all default arising out of it must also go.18. Therefore I think that on theOfficers order being revised in appeal, the default based on it and all consequential proceedings must be taken to have been superseded and fresh proceedings have to be started to realise the dues as found by revised order.19. Coming now to the present case, in view of the order made in it it seems to me impossible to contend that the original default continued.It has, therefore, to be held that between the date of the appellate order and the communication of the recomputed amount of the tax to the assessee by theOfficer there could be no default. Since the Act does not provide for a default being in suspension for a period it must be held that the original default ceased to exist after the appellate order was made. Proceedings initiated on the original default before the appellate order could not, therefore, be continued any more. Indeed the appellate order superseded the original order and its consequences.20. If the effect of an appellate order reducing the assessment as in the present case did not wipe out the original order, a most anomalous situation would, in my view, arise. Under S. 46(1) of the Act after a default has been committed in terms of S. 45(1) theOfficer may impose a penalty not exceeding the amount of the tax due in respect of which the default has occurred. This penalty may be recovered in the same way as the tax due, that is to say, by a notice under S. 29 and thereafter by a certificate issued under S. 46(2). Now suppose the penalty for the full amount of the tax found due by theOfficer has been imposed and thereafter the appellate order reduces the amount of the tax. What happens to the order of penalty then? Obviously it does not automatically stand reduced to the reduced amount of the tax. It would again be absurd if the penalty could be recovered for the full original amount. The only sensible view to take in such a case would be that the order of penalty falls to the ground and the only logical way to support that conclusion would be to say that the original default hasam, however, of the opinion, that (except in cases of de minimis) the Act does contemplate that a fresh notice of demand shall issue. There are two reasons for it. The first is the language of S. 29 and the other is the consequences following the issuance of a notice of demand. I shall deal first with the second ground.31. After the demand is made, the tax penalty and interest become a debt due to the Government. This was decided a long time ago by the Privy Council inITR 285 at p. 289: (AIR 1945 PC 62 at p. 64). Further, by issuing a notice of demand, the period of limitation for appeals under S. 30 of the Act starts in many cases. Further still, when the notice of demand is not complied with, the assessee can be treated as a person in default and he is liable to pay a penalty equal to the tax debt under S. 46(1) of theAct. Lastly, on the failure of the assessee to pay after a notice of demand is issued, the recovery proceedings can be started within a time limit and the amount of tax can be treated as an arrear of land revenue.32. It follows, therefore, that the notice of demand is a vital document in many respects. Disobedience to it makes the assessee a defaulter. It is a condition precedent to the treatment of the tax as an arrear of land revenue. It is the starting point of limitation in two ways and the breach of obedience to the notice of demand draws a heavy penalty. The notice of demand which is issued must be in a form prescribed by R. 20 and the form includes the following particulars: it shows the amount which has to be paid and indicates the person to whom, the place where and the time within which it has to be soIt is said that all that is necessary is that theOfficer should write a letter informing the assessee that the tax is reduced from Rs. 10,010/The question is, why not send him a fresh notice of demand? If there is no provision in theAct to send a fresh notice there is none authorising the sending of letters. No doubt, the old proceedings for recovery of the tax might become out of date and inappropriate, but it is one thing to use coercion to recover an amount which the assessee did not but probably could not pay, and another to recover an amount which the assessee could and would pay readily. However, if the law requires that a notice of demand need not go, that would be the end of the matter; but, in my opinion, S. 29 in its terms is extremely clear and indicates that a notice of demand must always issue.It readsany tax, penalty or interest is due in consequence of any order passed under or in pursuance of this Act, theOfficer shall serve upon the assessee or other person liable to pay such tax, penalty or interest a notice of demand in the prescribed form specifying the sum solearned Chief Justice of the Calcutta High Court, if I may say respectfully, was perfectly right in pointing out its meaning in his first case. I cannot add to what he said and I adopt all the he said. But I would add a few words. The mandatory part of the section is quite clear."TheOfficer shall serve a notice of demand upon the assessee" are emphatic words and the earlier part shows that he has to do it when tax is due in consequence of "any order". Any order means not only an order passed by himself, but also an order passed by reason of the success of an appeal which the assessee may file and in which the old assessment is set aside. In view of the consequences that ensue, it is clear to me that when an assessment is gone through a second time and the amount of tax is reduced, theOfficer must intimate to the assessee the reduced amount of tax and make a demand and give him an opportunity to pay before treating him as a defaulter. This is incumbent because the assessment resulting in the tax is itself set aside or modified and as assessee is entitled to a proper assessment and ascertainment of tax before a demand can be made on him.35. It is said that theOfficer can send a letter but the law says that he shall serve upon the assessee a notice of demand in the prescribed form. When the law requires that a notice of demand should issue, the mode of compliance by a letter is excluded. It may be that the letter is a good substitute for a notice of demand but the section demands that it should be in the prescribed form. If a letter is to be written, why not a notice of demand? In other words, when the assessment is altered, whether it is reduced or it is increased, by reason of any order under the Act, it is the duty of theOfficer to issue a notice of demand in the prescribed form and serve it upon the assessee. The learned Chief Justice of the Calcutta High Court clearly was of the view in the first case that there was only one answer to the question and I respectfully agree with him. He could only depart from his earlier view by finding fault with his drafting of S. 45. I regret I cannot agree with him there. Section 45 intends that the order of the Appellate Assistant Commissioner and the Tribunal may in some cases also serve as notices of demand. Further it is not clear from the later decision whether on the enhancement of the tax, a fresh notice of demand is required for the excess only or for the whole of the sum. That answer is not furnished in any of the other cases to which reference was made at the bar. If default is saved in respect of the reduced amount, a default would also be saved in respect of the original amount when the demand is increased. If a notice of demand were to issue in respect of the excess only, there will be two notices of demand and two starting points of limitation, both for the purpose of coercive action under S. 46(7) as well as for purposes of any appeal that might lie. If, however, a fresh notice of demand is to go in respect of the composite sum, the question to ask would be, what happens to the default which was incurred already? How does it disappear? In my opinion, there is only one possible answer and it was given by the learned Chief Justice in the earlier case.36. I would therefore dismiss these appeals and all the more readily because a fresh notice of demand has issued in this case. If it is disobeyed, theOfficer would be able to recall the old certificate issued to the Revenue Officer, amend it and bring it in line with the tax now demandable and return it to him for continuing the recovery proceedings. | 0 | 4,591 | 4,366 | ### Instruction:
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been issued even in respect of the smaller amount which is ultimately found to be the tax properly payable. That being so, the assessee was under an obligation to pay it by the date fixed and if he did not pay it by that date, he became a defaulter" see Ladhuram Taparia v. D. K. Ghosh, 1958-33 ITR 407 at pp. 423, 424: ((S) AIR 1957 Cal 667 at p. 675). With great respect I am unable to accede to this proposition and the conclusion based thereon that the default and its consequences continue even after the appellate order reducing the original assessment. How does the assessee know before the appellate order the smaller amount which he might ultimately be liable to pay? It would be curious if he did not know what he had to pay and could still have defaulted in paying it.17.The order of reduction must, in my opinion, necessarily have the effect of setting aside the original order as a whole. It does not simply strike out a few of the figures appearing in the original order. That would really be a case of rectification for which provision is made in S. 35 of the Act. What an appellate order does in a case of reduction is, as in the present case, to go into all the figures and arrive afresh at the assessable income which replaces the amount of the income arrived at by the Income-tax Officer. Therefore it seems to me that in all cases of an appellate order reducing the assessment the original order goes and if it goes, of course the notice of demand also falls to the ground and the default based thereupon also ceases to be default anymore. Suppose the appellate order itself stated that a smaller amount of tax was payable after it had reduced the figure of the assessable income at which the Income-tax Officer had arrived. Indeed I cannot imagine how else it can be expressed. After such an order the original order must go for the debt being one the two cannot exist together. If that order goes, all default arising out of it must also go.18. Therefore I think that on the Income-tax Officers order being revised in appeal, the default based on it and all consequential proceedings must be taken to have been superseded and fresh proceedings have to be started to realise the dues as found by revised order.19. Coming now to the present case, in view of the order made in it it seems to me impossible to contend that the original default continued. What happened in the present case was that on December 17, 1955 the Appellate Commissioner reduced the assessable income of the assessee as found by the Income-tax Officer by a large sum and directed him to recompute the tax due on the basis of the assessable income stated in the appellate order. The assessee was not informed about the recomputed amount of tax till February 14, 1956. The assessee had not paid the tax mentioned in the Income-tax Officer order. If he had done that then he would under the express terms of the appellate order have become entitled to a refund. What then was the position between these two dates? If the revenue authorities are right, then the assessee continued to be in default even after the appellate order. But what was the amount in respect of which he was so in default? Clearly he could not have continued to be in default in respect of the amount found due by the Income-tax Officer in his original order for that amount was no longer due. He could not have been in default in respect of the amount which was found due on recomputation by the Income-tax Officer according to the direction of the Appellate Commissioner because he did now know that amount. It would be absurd if the Act contemplated a default without the assessee knowing the amount in respect of which the default occurred and without his having a chance to pay it. It would be impossible to construe the Act in a way to produce that result. It has, therefore, to be held that between the date of the appellate order and the communication of the recomputed amount of the tax to the assessee by the Income-tax Officer there could be no default. Since the Act does not provide for a default being in suspension for a period it must be held that the original default ceased to exist after the appellate order was made. Proceedings initiated on the original default before the appellate order could not, therefore, be continued any more. Indeed the appellate order superseded the original order and its consequences.20. If the effect of an appellate order reducing the assessment as in the present case did not wipe out the original order, a most anomalous situation would, in my view, arise. Under S. 46(1) of the Act after a default has been committed in terms of S. 45(1) the Income-tax Officer may impose a penalty not exceeding the amount of the tax due in respect of which the default has occurred. This penalty may be recovered in the same way as the tax due, that is to say, by a notice under S. 29 and thereafter by a certificate issued under S. 46(2). Now suppose the penalty for the full amount of the tax found due by the Income-tax Officer has been imposed and thereafter the appellate order reduces the amount of the tax. What happens to the order of penalty then? Obviously it does not automatically stand reduced to the reduced amount of the tax. It would again be absurd if the penalty could be recovered for the full original amount. The only sensible view to take in such a case would be that the order of penalty falls to the ground and the only logical way to support that conclusion would be to say that the original default has disappeared.
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arrear of land revenue.32. It follows, therefore, that the notice of demand is a vital document in many respects. Disobedience to it makes the assessee a defaulter. It is a condition precedent to the treatment of the tax as an arrear of land revenue. It is the starting point of limitation in two ways and the breach of obedience to the notice of demand draws a heavy penalty. The notice of demand which is issued must be in a form prescribed by R. 20 and the form includes the following particulars: it shows the amount which has to be paid and indicates the person to whom, the place where and the time within which it has to be soIt is said that all that is necessary is that theOfficer should write a letter informing the assessee that the tax is reduced from Rs. 10,010/The question is, why not send him a fresh notice of demand? If there is no provision in theAct to send a fresh notice there is none authorising the sending of letters. No doubt, the old proceedings for recovery of the tax might become out of date and inappropriate, but it is one thing to use coercion to recover an amount which the assessee did not but probably could not pay, and another to recover an amount which the assessee could and would pay readily. However, if the law requires that a notice of demand need not go, that would be the end of the matter; but, in my opinion, S. 29 in its terms is extremely clear and indicates that a notice of demand must always issue.It readsany tax, penalty or interest is due in consequence of any order passed under or in pursuance of this Act, theOfficer shall serve upon the assessee or other person liable to pay such tax, penalty or interest a notice of demand in the prescribed form specifying the sum solearned Chief Justice of the Calcutta High Court, if I may say respectfully, was perfectly right in pointing out its meaning in his first case. I cannot add to what he said and I adopt all the he said. But I would add a few words. The mandatory part of the section is quite clear."TheOfficer shall serve a notice of demand upon the assessee" are emphatic words and the earlier part shows that he has to do it when tax is due in consequence of "any order". Any order means not only an order passed by himself, but also an order passed by reason of the success of an appeal which the assessee may file and in which the old assessment is set aside. In view of the consequences that ensue, it is clear to me that when an assessment is gone through a second time and the amount of tax is reduced, theOfficer must intimate to the assessee the reduced amount of tax and make a demand and give him an opportunity to pay before treating him as a defaulter. This is incumbent because the assessment resulting in the tax is itself set aside or modified and as assessee is entitled to a proper assessment and ascertainment of tax before a demand can be made on him.35. It is said that theOfficer can send a letter but the law says that he shall serve upon the assessee a notice of demand in the prescribed form. When the law requires that a notice of demand should issue, the mode of compliance by a letter is excluded. It may be that the letter is a good substitute for a notice of demand but the section demands that it should be in the prescribed form. If a letter is to be written, why not a notice of demand? In other words, when the assessment is altered, whether it is reduced or it is increased, by reason of any order under the Act, it is the duty of theOfficer to issue a notice of demand in the prescribed form and serve it upon the assessee. The learned Chief Justice of the Calcutta High Court clearly was of the view in the first case that there was only one answer to the question and I respectfully agree with him. He could only depart from his earlier view by finding fault with his drafting of S. 45. I regret I cannot agree with him there. Section 45 intends that the order of the Appellate Assistant Commissioner and the Tribunal may in some cases also serve as notices of demand. Further it is not clear from the later decision whether on the enhancement of the tax, a fresh notice of demand is required for the excess only or for the whole of the sum. That answer is not furnished in any of the other cases to which reference was made at the bar. If default is saved in respect of the reduced amount, a default would also be saved in respect of the original amount when the demand is increased. If a notice of demand were to issue in respect of the excess only, there will be two notices of demand and two starting points of limitation, both for the purpose of coercive action under S. 46(7) as well as for purposes of any appeal that might lie. If, however, a fresh notice of demand is to go in respect of the composite sum, the question to ask would be, what happens to the default which was incurred already? How does it disappear? In my opinion, there is only one possible answer and it was given by the learned Chief Justice in the earlier case.36. I would therefore dismiss these appeals and all the more readily because a fresh notice of demand has issued in this case. If it is disobeyed, theOfficer would be able to recall the old certificate issued to the Revenue Officer, amend it and bring it in line with the tax now demandable and return it to him for continuing the recovery proceedings.
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M/S. Mutha Associates Vs. State Of Maharashtra | words is not enough. What is necessary is to give full particulars of such allegations and to set out the material facts specifying the particular person against whom such allegations are made so that he may have an opportunity of controverting such allegations. The requirement of law is not satisfied insofar as the pleadings in the present case are concerned and in the absence of necessary particulars and material facts, we fail to see how the learned Judge could come to a finding that the State Government was guilty of factual mala fides, corruption and underhand dealing. 43. To the same effect is the decision of this Court in Smt. Swaran Lata v. Union of India & Ors. (1979) 3 SCC 165 , the Court held that in the absence of particulars, the Court would be justified in refusing to conduct an investigation into the allegations of malafides. 44. In Minor A Paeeiakaruppan v. Sobha Joseph (1971) 1 SCC 38 , this Court held that even when the Court examining the validity of an action may find a circumstance to be disturbing it cannot uphold the plea of malafides on ground of mere probabilities. A note of caution was similarly sounded by this Court in E.P. Royappa v. State of T.N. (1974) 4 SCC 3 , where the Court held that it ought to be slow to draw dubious inferences from incomplete facts particularly when imputations are grave and they are made against the holder of an office which has high responsibility in the administration. The following passage from the decision is apposite: 92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up-these considerations are wholly irrelevant in judicial approach-but because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent. 45. The charge of malafides levelled against the appellant-Mr. Rane, the then Minister was not supported by any particulars. The writ petition filed by APMC did not provide specific particulars or details of how the decision taken by minister was influenced by Mutha Associates or by any other person for that matter. The averments made in the writ petition in that regard appeared to be general and inferential in nature. Such allegations were, in our opinion, insufficient to hold the charge of malice in fact levelled against the minister proved. 46. It is true that the High Court has enumerated certain stark irregularities in the decision making process or the use of material obtained on behalf of the back of the beneficiary of the acquisition as also the denial of fair opportunity to the beneficiary to present its case before the minister yet those irregularities do not inevitably lead to the conclusion that the minister had acted malafide. Failure to abide by the principles of natural justice are consideration of material not disclose to a party or non-application of mind, to the material available on record may vitiate the decision taken by the authority concerned and may even constitute malice in law but the action may still remain bonafide and in good faith. It is trite that every action taken by a public authority even found untenable cannot be dubbed as malafide simply because it has fallen short of the legal standards and requirements for an action may continue to be bonafide and in good faith no matter the public authority passing the order has committed mistakes or irregularities in procedures or even breached the minimal requirements of the principles of natural justice. The High Court has attributed to the Minister appellant in Civil Appeals No.2856-2857 of 2002, malafides simply because the order passed by him was found to be untenable in law. Such an inference was not in our view justified, no matter the circumstances enumerated by the High Court may have given rise to a strong suspicion that the minister acted out of extraneous considerations. Suspicion, however, strong cannot be proof of the charge of malafide. It is only on clear proof of high degree that the court could strike down an action on the ground of malafide which standard of proof was not, in our opinion, satisfied in the instant case. To the extent the High Court held the action of the minister to be malafide, the impugned order would require correction and Civil Appeals No.2856 and 2857 of 2002 allowed. 47. | 0[ds]The High Court was, in our opinion, perfectly justified in holding that the order passed by the Minister lacked objectivity and was hasty without due and proper consideration of the relevant circumstances and the material on record. There is, in our view, no infirmity in the said findings nor was any serious attempt made before us by learned counsel for the appellants to demonstrate that the Minister had indeed acted in a fair objective and dispassionate manner while directing the withdrawal of the acquisition proceedings on the twin grounds that have been scrutinised by the High Court and rightly found to be untenable. We are satisfied that the order passed by the Minister directing withdrawal of the acquisition proceedings was bad not only because it was arbitrary, lacked objectivity and ignored the material on record but also because the said order was passed without offering to the APMC a fair and reasonable opportunity of being heard in the matter. That the order was not notified was only an additional reason that rendered the order legally unsupportable which the High Court rightly quashedThe charge of malafides levelled against the appellant-Mr. Rane, the then Minister was not supported by any particulars. The writ petition filed by APMC did not provide specific particulars or details of how the decision taken by minister was influenced by Mutha Associates or by any other person for that matter. The averments made in the writ petition in that regard appeared to be general and inferential in nature. Such allegations were, in our opinion, insufficient to hold the charge of malice in fact levelled against the minister proved46. It is true that the High Court has enumerated certain stark irregularities in the decision making process or the use of material obtained on behalf of the back of the beneficiary of the acquisition as also the denial of fair opportunity to the beneficiary to present its case before the minister yet those irregularities do not inevitably lead to the conclusion that the minister had acted malafide. Failure to abide by the principles of natural justice are consideration of material not disclose to a party or non-application of mind, to the material available on record may vitiate the decision taken by the authority concerned and may even constitute malice in law but the action may still remain bonafide and in good faith. It is trite that every action taken by a public authority even found untenable cannot be dubbed as malafide simply because it has fallen short of the legal standards and requirements for an action may continue to be bonafide and in good faith no matter the public authority passing the order has committed mistakes or irregularities in procedures or even breached the minimal requirements of the principles of natural justice. The High Court has attributed to the Minister appellant in Civil Appeals No.2856-2857 of 2002, malafides simply because the order passed by him was found to be untenable in law. Such an inference was not in our view justified, no matter the circumstances enumerated by the High Court may have given rise to a strong suspicion that the minister acted out of extraneous considerations. Suspicion, however, strong cannot be proof of the charge of malafide. It is only on clear proof of high degree that the court could strike down an action on the ground of malafide which standard of proof was not, in our opinion, satisfied in the instant case. To the extent the High Court held the action of the minister to be malafide, the impugned order would require correction and Civil Appeals No.2856 and 2857 of 2002 allowed. | 0 | 10,628 | 640 | ### 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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words is not enough. What is necessary is to give full particulars of such allegations and to set out the material facts specifying the particular person against whom such allegations are made so that he may have an opportunity of controverting such allegations. The requirement of law is not satisfied insofar as the pleadings in the present case are concerned and in the absence of necessary particulars and material facts, we fail to see how the learned Judge could come to a finding that the State Government was guilty of factual mala fides, corruption and underhand dealing. 43. To the same effect is the decision of this Court in Smt. Swaran Lata v. Union of India & Ors. (1979) 3 SCC 165 , the Court held that in the absence of particulars, the Court would be justified in refusing to conduct an investigation into the allegations of malafides. 44. In Minor A Paeeiakaruppan v. Sobha Joseph (1971) 1 SCC 38 , this Court held that even when the Court examining the validity of an action may find a circumstance to be disturbing it cannot uphold the plea of malafides on ground of mere probabilities. A note of caution was similarly sounded by this Court in E.P. Royappa v. State of T.N. (1974) 4 SCC 3 , where the Court held that it ought to be slow to draw dubious inferences from incomplete facts particularly when imputations are grave and they are made against the holder of an office which has high responsibility in the administration. The following passage from the decision is apposite: 92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up-these considerations are wholly irrelevant in judicial approach-but because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent. 45. The charge of malafides levelled against the appellant-Mr. Rane, the then Minister was not supported by any particulars. The writ petition filed by APMC did not provide specific particulars or details of how the decision taken by minister was influenced by Mutha Associates or by any other person for that matter. The averments made in the writ petition in that regard appeared to be general and inferential in nature. Such allegations were, in our opinion, insufficient to hold the charge of malice in fact levelled against the minister proved. 46. It is true that the High Court has enumerated certain stark irregularities in the decision making process or the use of material obtained on behalf of the back of the beneficiary of the acquisition as also the denial of fair opportunity to the beneficiary to present its case before the minister yet those irregularities do not inevitably lead to the conclusion that the minister had acted malafide. Failure to abide by the principles of natural justice are consideration of material not disclose to a party or non-application of mind, to the material available on record may vitiate the decision taken by the authority concerned and may even constitute malice in law but the action may still remain bonafide and in good faith. It is trite that every action taken by a public authority even found untenable cannot be dubbed as malafide simply because it has fallen short of the legal standards and requirements for an action may continue to be bonafide and in good faith no matter the public authority passing the order has committed mistakes or irregularities in procedures or even breached the minimal requirements of the principles of natural justice. The High Court has attributed to the Minister appellant in Civil Appeals No.2856-2857 of 2002, malafides simply because the order passed by him was found to be untenable in law. Such an inference was not in our view justified, no matter the circumstances enumerated by the High Court may have given rise to a strong suspicion that the minister acted out of extraneous considerations. Suspicion, however, strong cannot be proof of the charge of malafide. It is only on clear proof of high degree that the court could strike down an action on the ground of malafide which standard of proof was not, in our opinion, satisfied in the instant case. To the extent the High Court held the action of the minister to be malafide, the impugned order would require correction and Civil Appeals No.2856 and 2857 of 2002 allowed. 47.
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The High Court was, in our opinion, perfectly justified in holding that the order passed by the Minister lacked objectivity and was hasty without due and proper consideration of the relevant circumstances and the material on record. There is, in our view, no infirmity in the said findings nor was any serious attempt made before us by learned counsel for the appellants to demonstrate that the Minister had indeed acted in a fair objective and dispassionate manner while directing the withdrawal of the acquisition proceedings on the twin grounds that have been scrutinised by the High Court and rightly found to be untenable. We are satisfied that the order passed by the Minister directing withdrawal of the acquisition proceedings was bad not only because it was arbitrary, lacked objectivity and ignored the material on record but also because the said order was passed without offering to the APMC a fair and reasonable opportunity of being heard in the matter. That the order was not notified was only an additional reason that rendered the order legally unsupportable which the High Court rightly quashedThe charge of malafides levelled against the appellant-Mr. Rane, the then Minister was not supported by any particulars. The writ petition filed by APMC did not provide specific particulars or details of how the decision taken by minister was influenced by Mutha Associates or by any other person for that matter. The averments made in the writ petition in that regard appeared to be general and inferential in nature. Such allegations were, in our opinion, insufficient to hold the charge of malice in fact levelled against the minister proved46. It is true that the High Court has enumerated certain stark irregularities in the decision making process or the use of material obtained on behalf of the back of the beneficiary of the acquisition as also the denial of fair opportunity to the beneficiary to present its case before the minister yet those irregularities do not inevitably lead to the conclusion that the minister had acted malafide. Failure to abide by the principles of natural justice are consideration of material not disclose to a party or non-application of mind, to the material available on record may vitiate the decision taken by the authority concerned and may even constitute malice in law but the action may still remain bonafide and in good faith. It is trite that every action taken by a public authority even found untenable cannot be dubbed as malafide simply because it has fallen short of the legal standards and requirements for an action may continue to be bonafide and in good faith no matter the public authority passing the order has committed mistakes or irregularities in procedures or even breached the minimal requirements of the principles of natural justice. The High Court has attributed to the Minister appellant in Civil Appeals No.2856-2857 of 2002, malafides simply because the order passed by him was found to be untenable in law. Such an inference was not in our view justified, no matter the circumstances enumerated by the High Court may have given rise to a strong suspicion that the minister acted out of extraneous considerations. Suspicion, however, strong cannot be proof of the charge of malafide. It is only on clear proof of high degree that the court could strike down an action on the ground of malafide which standard of proof was not, in our opinion, satisfied in the instant case. To the extent the High Court held the action of the minister to be malafide, the impugned order would require correction and Civil Appeals No.2856 and 2857 of 2002 allowed.
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M/S. Siemens Ltd Vs. State Of Maharashtra | payment of cess with interest immediately in respect of the purported supplies made to Navi Mumbai parties right from 1.06.1996. It was, however, stated: "You are also requested to attend at above address at 11.00 a.m. on 4.7.05 hearing. I am enclosing herewith the photocopies of the bills raised by Aurangabad Daman divisions to the Navi Mumbai Vendees." 6. A writ petition was filed by the appellant herein questioning the said purported notice. By reason of the impugned order, the High Court refused to exercise its jurisdiction under Article 226 of the Constitution of India stating: "Challenge is to a show cause notice issued by the Corporation demanding certain payment of cess on the value of goods imported from Aurangabad and Daman. Petitioners may file their reply to the show cause notice and produce the relevant documents within two weeks. In case the order is adverse to the petitioner no recovery shall be made for a period of four weeks from the date of service of the order on the petitioner." 7. Before this Court a counter affidavit has been filed wherein although inter alia it was contended that the said show cause notice cannot be termed as an order determining the rights and obligations of the parties, it has clearly been stated: "I say that the show cause notice dated 22.6.2005 at Annexure P-2 to the Special Leave Petition indicates that the Respondent No. 2 Corporation has been deprived of lawful recovery of Cess on the said goods imported within the jurisdiction of the Respondent Corporation. I say that such evasion of Cess is in huge amounts and it is perfectly within the rights of the respondent Corporation to call upon all the parties involved in the transactions to arrive at the exact finding of fact. I say that for arriving at the finding of fact with regard to the said imports there are many facts which need to be taken into account. I say that such factual aspects include : which is the party which has imported the goods within the jurisdictional limits of the respondent Corporation what is the nature of contract between the seller and the said importer of goods, is there any mechanism used by the parties to avoid payment of Cess on the said import of goods, what is the extent of Cess that is evaded as a result of such mechanism and who ultimately can be held responsible both for the purposes of recovery as also for the purpose of penalty." 8. It was further asserted: "I say that it is well known that under the Bombay Provincial Municipal Corporation (Cess on Entry of Goods) Rules 1996 goods purchased from registered dealers are not subject to Cess. I say that in this view of the fact the entire nature of the transactions, to which the petitioner also was party, need to be examined and scrutinized from the perspective of recovery of cess and identification of liability. I say that if the petitioner has directly or indirectly supplied the goods the petitioner itself must come forward to cooperate with the respondent Corporation to enable it to discharge its duties prescribed under the B.P.M.C. (Cess on Entry of Goods) Rules, 1996 read with B.P.M.C. Act 1949." 9. The question as to whether jurisdictional fact existed for issuance of the said notice order passed by the respondent was in question in the said writ petition. Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr. AIR 1987 SC 943 , Special Director and Another v. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006 (12) SCALE 262 ], but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K.I. Shephard and Others v. Union of India and Others (1987) 4 SCC 431 : AIR 1988 SC 686 ]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause. 10. The said principle has been followed by this Court in V.C. Banaras Hindu University and Ors. v. Shrikant [2006 (6) SCALE 66 ], stating: "The Vice Chancellor appears to have made up his mind to impose the punishment of dismissal on the Respondent herein. A post decisional hearing given by the High Court was illusory in this case.” 11. In K.I. Shephard & Ors. etc. etc. v. Union of India & Ors. [AIR 1988 SC 686 ], this Court held: "It is common experience that once a decision has been taken, there is tendency to uphold it and a representation may not really yield any fruitful purpose." 12. [See also Shri Shekhar Ghosh v. Union of India & Anr. 2006 (11) SCALE 363 and Rajesh Kumar & Ors. v. D.C.I.T. & Ors. 2006 (11) SCALE 409 ]. 13. A bare perusal of the order impugned before the High Court as also the statements made before us in the counter affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in the realm of a show cause notice. The writ petition, in our opinion, was maintainable. | 1[ds]13. A bare perusal of the order impugned before the High Court as also the statements made before us in the counter affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in the realm of a show cause notice. The writ petition, in our opinion, was maintainable. | 1 | 1,463 | 113 | ### 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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payment of cess with interest immediately in respect of the purported supplies made to Navi Mumbai parties right from 1.06.1996. It was, however, stated: "You are also requested to attend at above address at 11.00 a.m. on 4.7.05 hearing. I am enclosing herewith the photocopies of the bills raised by Aurangabad Daman divisions to the Navi Mumbai Vendees." 6. A writ petition was filed by the appellant herein questioning the said purported notice. By reason of the impugned order, the High Court refused to exercise its jurisdiction under Article 226 of the Constitution of India stating: "Challenge is to a show cause notice issued by the Corporation demanding certain payment of cess on the value of goods imported from Aurangabad and Daman. Petitioners may file their reply to the show cause notice and produce the relevant documents within two weeks. In case the order is adverse to the petitioner no recovery shall be made for a period of four weeks from the date of service of the order on the petitioner." 7. Before this Court a counter affidavit has been filed wherein although inter alia it was contended that the said show cause notice cannot be termed as an order determining the rights and obligations of the parties, it has clearly been stated: "I say that the show cause notice dated 22.6.2005 at Annexure P-2 to the Special Leave Petition indicates that the Respondent No. 2 Corporation has been deprived of lawful recovery of Cess on the said goods imported within the jurisdiction of the Respondent Corporation. I say that such evasion of Cess is in huge amounts and it is perfectly within the rights of the respondent Corporation to call upon all the parties involved in the transactions to arrive at the exact finding of fact. I say that for arriving at the finding of fact with regard to the said imports there are many facts which need to be taken into account. I say that such factual aspects include : which is the party which has imported the goods within the jurisdictional limits of the respondent Corporation what is the nature of contract between the seller and the said importer of goods, is there any mechanism used by the parties to avoid payment of Cess on the said import of goods, what is the extent of Cess that is evaded as a result of such mechanism and who ultimately can be held responsible both for the purposes of recovery as also for the purpose of penalty." 8. It was further asserted: "I say that it is well known that under the Bombay Provincial Municipal Corporation (Cess on Entry of Goods) Rules 1996 goods purchased from registered dealers are not subject to Cess. I say that in this view of the fact the entire nature of the transactions, to which the petitioner also was party, need to be examined and scrutinized from the perspective of recovery of cess and identification of liability. I say that if the petitioner has directly or indirectly supplied the goods the petitioner itself must come forward to cooperate with the respondent Corporation to enable it to discharge its duties prescribed under the B.P.M.C. (Cess on Entry of Goods) Rules, 1996 read with B.P.M.C. Act 1949." 9. The question as to whether jurisdictional fact existed for issuance of the said notice order passed by the respondent was in question in the said writ petition. Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr. AIR 1987 SC 943 , Special Director and Another v. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006 (12) SCALE 262 ], but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K.I. Shephard and Others v. Union of India and Others (1987) 4 SCC 431 : AIR 1988 SC 686 ]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause. 10. The said principle has been followed by this Court in V.C. Banaras Hindu University and Ors. v. Shrikant [2006 (6) SCALE 66 ], stating: "The Vice Chancellor appears to have made up his mind to impose the punishment of dismissal on the Respondent herein. A post decisional hearing given by the High Court was illusory in this case.” 11. In K.I. Shephard & Ors. etc. etc. v. Union of India & Ors. [AIR 1988 SC 686 ], this Court held: "It is common experience that once a decision has been taken, there is tendency to uphold it and a representation may not really yield any fruitful purpose." 12. [See also Shri Shekhar Ghosh v. Union of India & Anr. 2006 (11) SCALE 363 and Rajesh Kumar & Ors. v. D.C.I.T. & Ors. 2006 (11) SCALE 409 ]. 13. A bare perusal of the order impugned before the High Court as also the statements made before us in the counter affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in the realm of a show cause notice. The writ petition, in our opinion, was maintainable.
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13. A bare perusal of the order impugned before the High Court as also the statements made before us in the counter affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in the realm of a show cause notice. The writ petition, in our opinion, was maintainable.
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Jagdish Narain Maltiar Vs. State of Bihar & Others | Chandrachud, J.1. This appeal is founded on a certificate granted by the Patna High Court under Article 133 (1) (a) of the Constitution.2. The appellant was appointed as a Supply Inspector in 1948. In 1957, while he was in charge of the Wagerganj Godown a complaint of bribery was made against him. An inquiry was held into that complaint but eventually the appellant was removed from service by an order dated September 16, 1958.3. On September 28, 1958 the appellant filed Writ Petition No. 87 of 1960 (1958?) in the Patna High Court but that Petition was dismissed on 21-1-1960 presumably because a statement was made on behalf of the State Government that the appellant was not removed for misconduct but his services being temporary were terminated by a simple order of discharge.4. The appellant thereafter made a representation to the Government asking that his case be reviewed and that he be paid gratuity. In reply it was stated by the Government that the claim for gratuity could not be entertained in view of the fact that the appellants services were terminated for gross misconduct.5. The appellant thereafter submitted further memorials to the Government and on September 23, 1966 he filed the present Writ Petition in the High Court. By an order dated September 27, 1966 the High Court dismissed the Petition summarily on the ground that it was filed after an abnormal delay.6. There is no substance in the preliminary objection raised by the respondent that the certificate granted by the High Court under Article 133 (1) (a) is invalid on the ground that the amount or value of the subject matter of the dispute is not of the description mentioned in clause (a). Reliance is placed in support of this argument on the decision in Satyanarain Prasad v. State of Bihar, (1970) 2 SCC 275 but that case, in our opinion, is clearly distinguishable. Proceedings were started therein against a Government servant who was asked to show cause why he should not be removed from service. The notice to show cause was challenged by him under Article 226 of the Constitution but the petition was summarily dismissed by the High Court. The High Court then granted a certificate under Article 133 (1) but it was held by this court that the certificate was invalid as the claim in the petition by which the validity of the notice to show cause was challenged could not be regarded as of a value not less than Rupees 20.000/-. Such a claim was said to be not capable of valuation. In the instant case the Writ Petition was filed against an order of removal from service and it is plain that if the Petition were to succeed and appellant reinstated in a service he shall have been entitled to arrears of salary amounting to Rs. 20,000/- or upwards. The High Court was therefore right in granting the certificate under Article 133 (1) (a) of the Constitution.7. But equally, there is no substance in the appellants contention that the High Court was in error in dismissing the Petition on the ground that it was filed after an abnormal delay. It is only necessary to mention a few dates in order to show how the High Court was justified in the view it took. The first Writ Petition filed by the appellant was dismissed on January 21, 1960. The appellant made a representation to the Government more than 3 years thereafter i.e. on June 4, 1963. He received a reply to his representation on August 17, 1963 in which it was stated that his services were terminated for gross misconduct. On December 2, 1963 he submitted a fresh memorandum to the Government. On February 6, 1964 he submitted yet another memorandum. He waited to receive a reply till September 2, 1965 on which date he filed a further representation. He received an order rejecting his representation on May 15, 1966.8. Thus it was in August, 1963 that the appellant discovered that his services were really determined for gross misconduct. For nearly 3 years thereafter he kept on submitting one memorandum after another to the Government and it was not until late in 1966 that he filed a Writ Petition in the High Court to challenge the order of removal. The memorials presented by him to the Government were in the nature of mercy petitions and he should have realised that in pursuing a remedy which was not duly appointed under the law he was putting in peril a right of high value and significance. By his conduct he disabled the High Court from exercising its extraordinary powers in his favour. We are therefore of the opinion that the High Court was justified in refusing to entertain the petition. | 0[ds]Reliance is placed in support of this argument on the decision in Satyanarain Prasad v. State of Bihar, (1970) 2 SCC 275 but that case, in our opinion, is clearly distinguishable. Proceedings were started therein against a Government servant who was asked to show cause why he should not be removed from service. The notice to show cause was challenged by him under Article 226 of the Constitution but the petition was summarily dismissed by the High Court. The High Court then granted a certificate under Article 133 (1) but it was held by this court that the certificate was invalid as the claim in the petition by which the validity of the notice to show cause was challenged could not be regarded as of a value not less than Rupees 20.Such a claim was said to be not capable of valuation. In the instant case the Writ Petition was filed against an order of removal from service and it is plain that if the Petition were to succeed and appellant reinstated in a service he shall have been entitled to arrears of salary amounting to Rs. 20,000/or upwards. The High Court was therefore right in granting the certificate under Article 133 (1) (a) of the Constitution.7. But equally, there is no substance in the appellants contention that the High Court was in error in dismissing the Petition on the ground that it was filed after an abnormal delay. It is only necessary to mention a few dates in order to show how the High Court was justified in the view it took. The first Writ Petition filed by the appellant was dismissed on January 21, 1960. The appellant made a representation to the Government more than 3 years thereafter i.e. on June 4, 1963. He received a reply to his representation on August 17, 1963 in which it was stated that his services were terminated for gross misconduct. On December 2, 1963 he submitted a fresh memorandum to the Government. On February 6, 1964 he submitted yet another memorandum. He waited to receive a reply till September 2, 1965 on which date he filed a further representation. He received an order rejecting his representation on May 15, 1966.8. Thus it was in August, 1963 that the appellant discovered that his services were really determined for gross misconduct. For nearly 3 years thereafter he kept on submitting one memorandum after another to the Government and it was not until late in 1966 that he filed a Writ Petition in the High Court to challenge the order of removal. The memorials presented by him to the Government were in the nature of mercy petitions and he should have realised that in pursuing a remedy which was not duly appointed under the law he was putting in peril a right of high value and significance. By his conduct he disabled the High Court from exercising its extraordinary powers in his favour. We are therefore of the opinion that the High Court was justified in refusing to entertain the petition. | 0 | 868 | 553 | ### Instruction:
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Chandrachud, J.1. This appeal is founded on a certificate granted by the Patna High Court under Article 133 (1) (a) of the Constitution.2. The appellant was appointed as a Supply Inspector in 1948. In 1957, while he was in charge of the Wagerganj Godown a complaint of bribery was made against him. An inquiry was held into that complaint but eventually the appellant was removed from service by an order dated September 16, 1958.3. On September 28, 1958 the appellant filed Writ Petition No. 87 of 1960 (1958?) in the Patna High Court but that Petition was dismissed on 21-1-1960 presumably because a statement was made on behalf of the State Government that the appellant was not removed for misconduct but his services being temporary were terminated by a simple order of discharge.4. The appellant thereafter made a representation to the Government asking that his case be reviewed and that he be paid gratuity. In reply it was stated by the Government that the claim for gratuity could not be entertained in view of the fact that the appellants services were terminated for gross misconduct.5. The appellant thereafter submitted further memorials to the Government and on September 23, 1966 he filed the present Writ Petition in the High Court. By an order dated September 27, 1966 the High Court dismissed the Petition summarily on the ground that it was filed after an abnormal delay.6. There is no substance in the preliminary objection raised by the respondent that the certificate granted by the High Court under Article 133 (1) (a) is invalid on the ground that the amount or value of the subject matter of the dispute is not of the description mentioned in clause (a). Reliance is placed in support of this argument on the decision in Satyanarain Prasad v. State of Bihar, (1970) 2 SCC 275 but that case, in our opinion, is clearly distinguishable. Proceedings were started therein against a Government servant who was asked to show cause why he should not be removed from service. The notice to show cause was challenged by him under Article 226 of the Constitution but the petition was summarily dismissed by the High Court. The High Court then granted a certificate under Article 133 (1) but it was held by this court that the certificate was invalid as the claim in the petition by which the validity of the notice to show cause was challenged could not be regarded as of a value not less than Rupees 20.000/-. Such a claim was said to be not capable of valuation. In the instant case the Writ Petition was filed against an order of removal from service and it is plain that if the Petition were to succeed and appellant reinstated in a service he shall have been entitled to arrears of salary amounting to Rs. 20,000/- or upwards. The High Court was therefore right in granting the certificate under Article 133 (1) (a) of the Constitution.7. But equally, there is no substance in the appellants contention that the High Court was in error in dismissing the Petition on the ground that it was filed after an abnormal delay. It is only necessary to mention a few dates in order to show how the High Court was justified in the view it took. The first Writ Petition filed by the appellant was dismissed on January 21, 1960. The appellant made a representation to the Government more than 3 years thereafter i.e. on June 4, 1963. He received a reply to his representation on August 17, 1963 in which it was stated that his services were terminated for gross misconduct. On December 2, 1963 he submitted a fresh memorandum to the Government. On February 6, 1964 he submitted yet another memorandum. He waited to receive a reply till September 2, 1965 on which date he filed a further representation. He received an order rejecting his representation on May 15, 1966.8. Thus it was in August, 1963 that the appellant discovered that his services were really determined for gross misconduct. For nearly 3 years thereafter he kept on submitting one memorandum after another to the Government and it was not until late in 1966 that he filed a Writ Petition in the High Court to challenge the order of removal. The memorials presented by him to the Government were in the nature of mercy petitions and he should have realised that in pursuing a remedy which was not duly appointed under the law he was putting in peril a right of high value and significance. By his conduct he disabled the High Court from exercising its extraordinary powers in his favour. We are therefore of the opinion that the High Court was justified in refusing to entertain the petition.
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Reliance is placed in support of this argument on the decision in Satyanarain Prasad v. State of Bihar, (1970) 2 SCC 275 but that case, in our opinion, is clearly distinguishable. Proceedings were started therein against a Government servant who was asked to show cause why he should not be removed from service. The notice to show cause was challenged by him under Article 226 of the Constitution but the petition was summarily dismissed by the High Court. The High Court then granted a certificate under Article 133 (1) but it was held by this court that the certificate was invalid as the claim in the petition by which the validity of the notice to show cause was challenged could not be regarded as of a value not less than Rupees 20.Such a claim was said to be not capable of valuation. In the instant case the Writ Petition was filed against an order of removal from service and it is plain that if the Petition were to succeed and appellant reinstated in a service he shall have been entitled to arrears of salary amounting to Rs. 20,000/or upwards. The High Court was therefore right in granting the certificate under Article 133 (1) (a) of the Constitution.7. But equally, there is no substance in the appellants contention that the High Court was in error in dismissing the Petition on the ground that it was filed after an abnormal delay. It is only necessary to mention a few dates in order to show how the High Court was justified in the view it took. The first Writ Petition filed by the appellant was dismissed on January 21, 1960. The appellant made a representation to the Government more than 3 years thereafter i.e. on June 4, 1963. He received a reply to his representation on August 17, 1963 in which it was stated that his services were terminated for gross misconduct. On December 2, 1963 he submitted a fresh memorandum to the Government. On February 6, 1964 he submitted yet another memorandum. He waited to receive a reply till September 2, 1965 on which date he filed a further representation. He received an order rejecting his representation on May 15, 1966.8. Thus it was in August, 1963 that the appellant discovered that his services were really determined for gross misconduct. For nearly 3 years thereafter he kept on submitting one memorandum after another to the Government and it was not until late in 1966 that he filed a Writ Petition in the High Court to challenge the order of removal. The memorials presented by him to the Government were in the nature of mercy petitions and he should have realised that in pursuing a remedy which was not duly appointed under the law he was putting in peril a right of high value and significance. By his conduct he disabled the High Court from exercising its extraordinary powers in his favour. We are therefore of the opinion that the High Court was justified in refusing to entertain the petition.
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Pioneer Dyeing House Limited Vs. Shanker Vishnu Marathe | Rs. 1,85,000 strikes us as arbitrary and unreasonable. The location of the property, its extent and its potentialities indicate that the property is capable of fetching a much higher price. (41) UNDER the earlier part of clause (i) (a) of the scheme, the managing director agrees to transfer the land under the building "pioneer House" to the company for a consideration of Rs. 47,000. It is difficult to appreciate that men of business knowing their interest would agree to such a provision. . The managing director had made a false claim to the building which belongs to the company. He agreed to sell the building to Yeshwant Mutual Insurance Company in possession and during the course of the last few years that company has recovered by way of rent an amount larger than the one which it had Life Insurance Corporation of India which has very properly taken the view it will not enforce the agreement of sale. It is contended that the amount paid by way of earnest been recovered in the shape of rent. It would be clear from these facts that the managing director has wrongly appropriated to himself the sum of Rs. 47,000. It, therefore, seems to us strange that he should be said to have transferred the land to the company for a consideration of Rs. 47,000. The company today is in possession of the building as well as the land and whatever may be the complications arising out of the dual ownership of the building and the land, the company could not be dispossessed, save through a proper action.(42) FINALLY, as we have stated earlier, the object of a scheme of reconstruction must be to enable the company to tide over a temporary difficulty and re-establish its business. This company has not only large liabilities and meagre assets but, ass ,matters stand today, it has neither a place to carry on its business nor the equipment with which to conduct it. The company owns six acres of land, three acres from out of which are to be sold under the scheme. The remaining three acres are in the possession of the Bajaj Electricals Limited and the Lunar Caustics Limited. The building on the Laxmi Road is mostly in the possession of tenants and, besides, the company will not be able to do its business in the building. That is about the place of business. As regards the machinery and equipment, the entire machinery which belonged to the company and with which it used to conduct its business has been sold by the liquidators for Rs. 1,20,000. It is from this amount that the liquidators had paid an interim dividend of 19 paise to the creditors. If the company has to start its business afresh, it will have to find a place first which in Poona is neither easy not cheap to obtain and it considerable amount would have to be expanded. (43) MR. Mistry says that the business of dyeing and printing cloth which the company used to do does not require a large capital or an expensive machinery. It is not possible to agree with this submission. The balance sheet of the company at exhibit 84 would show that in 1950. the it had stock-in-hand worth about Rs. 92,000, and in 1951, the stock-in- hand was worth about Rs. 61,000. Dyes and chemicals in the respective years were of the value of Rs. 52,000 and Rs. 40,000. As stated earlier, the company has hardly any means to pay the interest on the outstanding debts. It seems to us impossible that it will be able to raise any amount for the purchase of the equipment and the machinery needed for its business. The scheme is so unrealistic and impractical that it does not even attempt to visualise where and with what equipment the company will do its business. (44) WE will only cite one more reason why the scheme should not be sanctioned. That reason is by no means the least important. After the trial court decided Suit No. 835 of 1955, in respect of the building at Laxmi Road, the official liquidators filed a misfeasance summons on November 2,1957, against the managing director and three other directors of the company. The misfeasance summons was stayed during the pendency of the second appeal filed by the managing director in this court. The fact that the misfeasance proceedings were taken against the directors of the company is not shown to have been disclosed to the shareholders and creditors of the company. While considering the scheme, it was highly relevant whether the conduct of the managing director and the other directors was such that the fate of the company could be put in their hands. If the creditors were told that a court of laws had held that the managing director was guilty of fraud as against the company and if they were further told that misfeasance proceedings were taken against the directors, their decision on the approval of the scheme could have been easily otherwise.(45) IT is urged by Mr. Mistry that it was the duty of the official liquidators to disclose to the creditors and the shareholders that misfeasance proceedings were taken against the directors. The questions, in our opinion, in our opinion, is not who is to blame for the non-disclosure of such an important fact, but the question is whether material facts were before the shareholders and creditors who had met to consider the scheme. We are not surprised that the sponsors of the scheme did not disclose to the meeting that misfeasance proceedings were pending, because two of the sponsors of the scheme, Gopal Ganesh Ketkar and Achyut Dattatraya Phatak, figure as delinquent directors in those proceedings. The managing director of the company against whom also misfeasance proceedings were taken against the directors of the company, they would not have approved the scheme under which the affairs of the company are once again relegated into the hands of the self-same directors. | 1[ds]The answer to this question can, in our opinion, be found in section 153 of the Indian Companies Act, 1913, which governs the present proceedings. Section 153 provides by(1), in so far as is material, that where a compromise or arrangement is proposed between a company and its creditors or its members, the court may order that a meeting he held of creditors or the members of the company.(2) of section 153, which is to the point, reads thus:"if a majority in number representingin value of the creditors or class of creditors, or members of class of members, as the case may be, present either in person or by proxy at the meeting, agree to any compromise or arrangement, the compromise or arrangement shall, if sanctioned by the court, be binding on all the creditors or the class of creditors, or on all the members or class of members, as the case may be, and also on the company or, in the case of a company in the course of being wound up, on the liquidator and contributories of the company. "(12) IT is clear from the language of(2) that the court is not bound to accept the view of the majority.(2) says that if a certain majority agrees to the compromise or arrangement, the same shall bind the creditors, members, liquidators and contributors" if sanctioned by the court. "(2), advisedly, does not say that if a certain proportion of the creditors or members agrees to a compromise or arrangement shall bind all concerned. Therefore, though the opinion of the creditors or members of the company must be given due weight, such an opinion does not conclude the question whether the scheme must be accepted. The opinion of the majority is only one of the elements in the case, to be considered by the court which is called upon to sanction the scheme.(30) ON a review of these authorities and from the provisions in section 153 (2) of the Indian Companies Act, 1913, it seems to us clear that the consent of the majority of creditors or shareholders to a scheme should be sanctioned. The jurisdiction of the court which is called upon to sanction a scheme is willing to submit to the scheme. The creditors of a company may agree to accept a fraction of the amount due to them from the company and yet, on considerations of more lasting importance, like public or commercial morality, the court may refuse to accept the verdict of the majority. It may also refuse to accept the scheme on the ground that it is not reasonable or that it is not feasible or that there is no chance that it will yield to a smooth and satisfactory execution. By "reasonable" is generally meant that the arrangement can reasonably be supposed by sensible business people to be for the benefit of the class which they represent. The court will also not sanction the sanction the scheme if the facts which would have influenced the decision of the majority were not known or disclosed to the majority, or if the sponsors of the scheme have misrepresented the true position of the company. Finally, if the acceptance of the scheme would lead to the stifling of an inquiry into the conduct of the delinquent directors, the court would be slow to give its sanction to the scheme. Considerations such as those mentioned above must be taken into account by a court before a scheme is sanctioned but, in the very nature of things, it is not possible to enumerate exhaustively the circumstances which a court is entitled to take into consideration. (31) IN our opinion, therefore, there is no substance in the submission of Mr. Mistry that the decision of the majority must necessarily lead to the inference that the scheme is for the benefit of that class which was represented in the statutory meeting. It is undoubtedly true that the verdict of the majority must be given due weight, because implicit in that verdict is the inference that those whose in interests are likely to be affected by the scheme are willing to submit to it. As we have, however, stated earlier, the view of the majority is but one element in the case, thought a very important one, which must be taken into account in sanctioning the scheme. The view of the majority is not decisive.(32) WE must now turn to the more important clauses of the scheme in order to show why the scheme cannot be sanctioned. A scheme of reconstruction of a show why the scheme cannot be sanctioned. A scheme of reconstruction of a company which is ordered to be wound up must postulate that on some reasonable hypothesis it is possible to revive the business of the company. The assets of this company are so meagre and its liabilities so large that it is in a state of hopeless insolvency. From that state it would, in our opinion, be impossible to resuscitate it. Mr. Mistry has submitted to us two statements as regards the position of the companyone under the scheme, and another, without the scheme. The statement prepared by Mr. Mistery as reflecting the position of the company is wholly insolvent. According to the statement submitted by Mr. Mistry, the company will have assets of the value of Rs. 6,73,000 and liabilities amounting to Rs. 7,24,500 under the scheme. It is difficult to see how the company is going to function without any running capital and without any liquid assets. We must also mention that the liabilities shown in the statements tendered before us by Mr. Mistry ignore many other liabilities which the company shall have to meet. For example, the arrears of tax have been shown in the statement at Rs. 32,000, when, in fact, the company will have to pay a much larger amount under that head. If the building on the Laxmi Road belongs to the company, and that is the decision in the suit filed by the liquidators against the managing directors, the company will have to payon the monthly rent received during the course of the last many years. The managing directors, had made an unfounded claim that the building belonged to him and the rent was not taxed in his hands, because it is said that his income was less than the minimum taxable.(37) THE first question which one might consider is from where will the company pay even the interest to the secured creditors. The interest payable to the two classes ofand the mortgagees comes to Rs. 21,670 per year. The only source of income to the company today is the rent of Rs. 2,100 per month from the three acres of plot which is in the possession of two companies called the Bajaj Electrical Limited and the Lunar Caustics Limited and the rent of Rs. 1,300 per month from the Pioneer House at Laxmi Road Poona. Excluding four months rent for taxes, repairs and outgoings, the company will receive a sum of Rs. 27,200 per year by way of rent. The best part of this amount shall have to be utilised for paying the interest on the debentures and the mortgages, with the result that the company will not be left with any capital to carry on its business. It is urged by Mr. Mistry that, under the scheme, the company would issue fresh shares for subscription by the public and the public may come forth to buy the shares. This possibility , seems therefore, that the company may be able to raise capital for its business must be excluded. Therefore, if the scheme is accepted, all that can happen is that the evil day will be postponed. We see no justification for prolonging the agonies is accepted, the company will have to face a fresh challenge to its solvency within a short time. (38) THE second reason why the scheme cannot be sanctioned is that its object appears to us to be to cover the deeds of delinquent directors. In Civil Suit No. 835 of 1955 which was filed by the official liquidators against the managing directors and another person for a declaration that the building called "pioneer House" on the Laxmi Road, Poona, is of the ownership of the company, the trial court held that the managing director had made a false claim to the building, that he had manipulated accounts to suit his convenience and that he had not acted by the Extra Assistant Judge, Poona, who also held that the managing director was guilty of fraud. The managing director had filed an appeal in this court from the judgment of the Learned Extra Assistant Judge, being Second Appeal No. 925 of 1959, but that appeal was withdrawn during the hearing of this appeal. We explained to the learned counsel appearing for the managing director that the withdrawal of the appeal will not efface the finding of fraud, but counsel stated that he was conscious of that position but had advised his client that it was not in his interest to prosecute the appeal. If the scheme is sanctioned, the winding up order will stand set aside, the liquidators will be discharge, there will be none to prosecute the misfeasance summons against the erring directors and the assets of the company will once again fall into the hands of persons whose rectitude is under a cloud. That cannot be permitted under the cloak of a scheme of reconstruction.(39) THE third reason why the scheme cannot be sanctioned is that it provides by clause (i) (a) that the personal debts of the managing director, amounting to Rs. 1,57,000, should be taken over by the company. It seems to us utterly unreasonable that the company should undertake to discharge the personal liabilities of the managing director. While justifying this provision, the scheme resorts to some mathematics and a little logic both of which are fictitious. In fact, the adoption of such a provision by the creditors shows that they gave their language of the decision in the Alabama case (1891) 1 Ch. 213. , this part of the arrangement is not such as men of business would reasonably approve. (40) WE would like to draw attention to a few other provisions of the scheme which appear to us unreasonable and impractical. Under clause (d) of the scheme, the vacant plot at Yerandavana measuring about three acres is required to be sold by private treaty for a sum of Rs. 1,85,000. We see no reason why the property should be sold privately. Public offers have never been invited for the sale at Rs. 1,85,000 strikes us as arbitrary and unreasonable. The location of the property, its extent and its potentialities indicate that the property is capable of fetching a much higher price. (41) UNDER the earlier part of clause (i) (a) of the scheme, the managing director agrees to transfer the land under the building "pioneer House" to the company for a consideration of Rs. 47,000. It is difficult to appreciate that men of business knowing their interest would agree to such a provision. . The managing director had made a false claim to the building which belongs to the company. He agreed to sell the building to Yeshwant Mutual Insurance Company in possession and during the course of the last few years that company has recovered by way of rent an amount larger than the one which it had Life Insurance Corporation of India which has very properly taken the view it will not enforce the agreement of sale. It is contended that the amount paid by way of earnest been recovered in the shape of rent. It would be clear from these facts that the managing director has wrongly appropriated to himself the sum of Rs. 47,000. It, therefore, seems to us strange that he should be said to have transferred the land to the company for a consideration of Rs. 47,000. The company today is in possession of the building as well as the land and whatever may be the complications arising out of the dual ownership of the building and the land, the company could not be dispossessed, save through a proper action.(42) FINALLY, as we have stated earlier, the object of a scheme of reconstruction must be to enable the company to tide over a temporary difficulty andits business. This company has not only large liabilities and meagre assets but, ass ,matters stand today, it has neither a place to carry on its business nor the equipment with which to conduct it. The company owns six acres of land, three acres from out of which are to be sold under the scheme. The remaining three acres are in the possession of the Bajaj Electricals Limited and the Lunar Caustics Limited. The building on the Laxmi Road is mostly in the possession of tenants and, besides, the company will not be able to do its business in the building. That is about the place of business. As regards the machinery and equipment, the entire machinery which belonged to the company and with which it used to conduct its business has been sold by the liquidators for Rs. 1,20,000. It is from this amount that the liquidators had paid an interim dividend of 19 paise to the creditors. If the company has to start its business afresh, it will have to find a place first which in Poona is neither easy not cheap to obtain and it considerable amount would have to be expanded.balance sheet of the company at exhibit 84 would show that in 1950. the it hadworth about Rs. 92,000, and in 1951, thehand was worth about Rs. 61,000. Dyes and chemicals in the respective years were of the value of Rs. 52,000 and Rs. 40,000. As stated earlier, the company has hardly any means to pay the interest on the outstanding debts. It seems to us impossible that it will be able to raise any amount for the purchase of the equipment and the machinery needed for its business. The scheme is so unrealistic and impractical that it does not even attempt to visualise where and with what equipment the company will do its business. (44) WE will only cite one more reason why the scheme should not be sanctioned. That reason is by no means the least important. After the trial court decided Suit No. 835 of 1955, in respect of the building at Laxmi Road, the official liquidators filed a misfeasance summons on November 2,1957, against the managing director and three other directors of the company. The misfeasance summons was stayed during the pendency of the second appeal filed by the managing director in this court. The fact that the misfeasance proceedings were taken against the directors of the company is not shown to have been disclosed to the shareholders and creditors of the company. While considering the scheme, it was highly relevant whether the conduct of the managing director and the other directors was such that the fate of the company could be put in their hands. If the creditors were told that a court of laws had held that the managing director was guilty of fraud as against the company and if they were further told that misfeasance proceedings were taken against the directors, their decision on the approval of the scheme could have been easilyquestions, in our opinion, in our opinion, is not who is to blame for theof such an important fact, but the question is whether material facts were before the shareholders and creditors who had met to consider the scheme. We are not surprised that the sponsors of the scheme did not disclose to the meeting that misfeasance proceedings were pending, because two of the sponsors of the scheme, Gopal Ganesh Ketkar and Achyut Dattatraya Phatak, figure as delinquent directors in those proceedings. The managing director of the company against whom also misfeasance proceedings were taken against the directors of the company, they would not have approved the scheme under which the affairs of the company are once again relegated into the hands of the | 1 | 8,958 | 2,991 | ### Instruction:
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Rs. 1,85,000 strikes us as arbitrary and unreasonable. The location of the property, its extent and its potentialities indicate that the property is capable of fetching a much higher price. (41) UNDER the earlier part of clause (i) (a) of the scheme, the managing director agrees to transfer the land under the building "pioneer House" to the company for a consideration of Rs. 47,000. It is difficult to appreciate that men of business knowing their interest would agree to such a provision. . The managing director had made a false claim to the building which belongs to the company. He agreed to sell the building to Yeshwant Mutual Insurance Company in possession and during the course of the last few years that company has recovered by way of rent an amount larger than the one which it had Life Insurance Corporation of India which has very properly taken the view it will not enforce the agreement of sale. It is contended that the amount paid by way of earnest been recovered in the shape of rent. It would be clear from these facts that the managing director has wrongly appropriated to himself the sum of Rs. 47,000. It, therefore, seems to us strange that he should be said to have transferred the land to the company for a consideration of Rs. 47,000. The company today is in possession of the building as well as the land and whatever may be the complications arising out of the dual ownership of the building and the land, the company could not be dispossessed, save through a proper action.(42) FINALLY, as we have stated earlier, the object of a scheme of reconstruction must be to enable the company to tide over a temporary difficulty and re-establish its business. This company has not only large liabilities and meagre assets but, ass ,matters stand today, it has neither a place to carry on its business nor the equipment with which to conduct it. The company owns six acres of land, three acres from out of which are to be sold under the scheme. The remaining three acres are in the possession of the Bajaj Electricals Limited and the Lunar Caustics Limited. The building on the Laxmi Road is mostly in the possession of tenants and, besides, the company will not be able to do its business in the building. That is about the place of business. As regards the machinery and equipment, the entire machinery which belonged to the company and with which it used to conduct its business has been sold by the liquidators for Rs. 1,20,000. It is from this amount that the liquidators had paid an interim dividend of 19 paise to the creditors. If the company has to start its business afresh, it will have to find a place first which in Poona is neither easy not cheap to obtain and it considerable amount would have to be expanded. (43) MR. Mistry says that the business of dyeing and printing cloth which the company used to do does not require a large capital or an expensive machinery. It is not possible to agree with this submission. The balance sheet of the company at exhibit 84 would show that in 1950. the it had stock-in-hand worth about Rs. 92,000, and in 1951, the stock-in- hand was worth about Rs. 61,000. Dyes and chemicals in the respective years were of the value of Rs. 52,000 and Rs. 40,000. As stated earlier, the company has hardly any means to pay the interest on the outstanding debts. It seems to us impossible that it will be able to raise any amount for the purchase of the equipment and the machinery needed for its business. The scheme is so unrealistic and impractical that it does not even attempt to visualise where and with what equipment the company will do its business. (44) WE will only cite one more reason why the scheme should not be sanctioned. That reason is by no means the least important. After the trial court decided Suit No. 835 of 1955, in respect of the building at Laxmi Road, the official liquidators filed a misfeasance summons on November 2,1957, against the managing director and three other directors of the company. The misfeasance summons was stayed during the pendency of the second appeal filed by the managing director in this court. The fact that the misfeasance proceedings were taken against the directors of the company is not shown to have been disclosed to the shareholders and creditors of the company. While considering the scheme, it was highly relevant whether the conduct of the managing director and the other directors was such that the fate of the company could be put in their hands. If the creditors were told that a court of laws had held that the managing director was guilty of fraud as against the company and if they were further told that misfeasance proceedings were taken against the directors, their decision on the approval of the scheme could have been easily otherwise.(45) IT is urged by Mr. Mistry that it was the duty of the official liquidators to disclose to the creditors and the shareholders that misfeasance proceedings were taken against the directors. The questions, in our opinion, in our opinion, is not who is to blame for the non-disclosure of such an important fact, but the question is whether material facts were before the shareholders and creditors who had met to consider the scheme. We are not surprised that the sponsors of the scheme did not disclose to the meeting that misfeasance proceedings were pending, because two of the sponsors of the scheme, Gopal Ganesh Ketkar and Achyut Dattatraya Phatak, figure as delinquent directors in those proceedings. The managing director of the company against whom also misfeasance proceedings were taken against the directors of the company, they would not have approved the scheme under which the affairs of the company are once again relegated into the hands of the self-same directors.
### Response:
1
### Explanation:
arrangement is not such as men of business would reasonably approve. (40) WE would like to draw attention to a few other provisions of the scheme which appear to us unreasonable and impractical. Under clause (d) of the scheme, the vacant plot at Yerandavana measuring about three acres is required to be sold by private treaty for a sum of Rs. 1,85,000. We see no reason why the property should be sold privately. Public offers have never been invited for the sale at Rs. 1,85,000 strikes us as arbitrary and unreasonable. The location of the property, its extent and its potentialities indicate that the property is capable of fetching a much higher price. (41) UNDER the earlier part of clause (i) (a) of the scheme, the managing director agrees to transfer the land under the building "pioneer House" to the company for a consideration of Rs. 47,000. It is difficult to appreciate that men of business knowing their interest would agree to such a provision. . The managing director had made a false claim to the building which belongs to the company. He agreed to sell the building to Yeshwant Mutual Insurance Company in possession and during the course of the last few years that company has recovered by way of rent an amount larger than the one which it had Life Insurance Corporation of India which has very properly taken the view it will not enforce the agreement of sale. It is contended that the amount paid by way of earnest been recovered in the shape of rent. It would be clear from these facts that the managing director has wrongly appropriated to himself the sum of Rs. 47,000. It, therefore, seems to us strange that he should be said to have transferred the land to the company for a consideration of Rs. 47,000. The company today is in possession of the building as well as the land and whatever may be the complications arising out of the dual ownership of the building and the land, the company could not be dispossessed, save through a proper action.(42) FINALLY, as we have stated earlier, the object of a scheme of reconstruction must be to enable the company to tide over a temporary difficulty andits business. This company has not only large liabilities and meagre assets but, ass ,matters stand today, it has neither a place to carry on its business nor the equipment with which to conduct it. The company owns six acres of land, three acres from out of which are to be sold under the scheme. The remaining three acres are in the possession of the Bajaj Electricals Limited and the Lunar Caustics Limited. The building on the Laxmi Road is mostly in the possession of tenants and, besides, the company will not be able to do its business in the building. That is about the place of business. As regards the machinery and equipment, the entire machinery which belonged to the company and with which it used to conduct its business has been sold by the liquidators for Rs. 1,20,000. It is from this amount that the liquidators had paid an interim dividend of 19 paise to the creditors. If the company has to start its business afresh, it will have to find a place first which in Poona is neither easy not cheap to obtain and it considerable amount would have to be expanded.balance sheet of the company at exhibit 84 would show that in 1950. the it hadworth about Rs. 92,000, and in 1951, thehand was worth about Rs. 61,000. Dyes and chemicals in the respective years were of the value of Rs. 52,000 and Rs. 40,000. As stated earlier, the company has hardly any means to pay the interest on the outstanding debts. It seems to us impossible that it will be able to raise any amount for the purchase of the equipment and the machinery needed for its business. The scheme is so unrealistic and impractical that it does not even attempt to visualise where and with what equipment the company will do its business. (44) WE will only cite one more reason why the scheme should not be sanctioned. That reason is by no means the least important. After the trial court decided Suit No. 835 of 1955, in respect of the building at Laxmi Road, the official liquidators filed a misfeasance summons on November 2,1957, against the managing director and three other directors of the company. The misfeasance summons was stayed during the pendency of the second appeal filed by the managing director in this court. The fact that the misfeasance proceedings were taken against the directors of the company is not shown to have been disclosed to the shareholders and creditors of the company. While considering the scheme, it was highly relevant whether the conduct of the managing director and the other directors was such that the fate of the company could be put in their hands. If the creditors were told that a court of laws had held that the managing director was guilty of fraud as against the company and if they were further told that misfeasance proceedings were taken against the directors, their decision on the approval of the scheme could have been easilyquestions, in our opinion, in our opinion, is not who is to blame for theof such an important fact, but the question is whether material facts were before the shareholders and creditors who had met to consider the scheme. We are not surprised that the sponsors of the scheme did not disclose to the meeting that misfeasance proceedings were pending, because two of the sponsors of the scheme, Gopal Ganesh Ketkar and Achyut Dattatraya Phatak, figure as delinquent directors in those proceedings. The managing director of the company against whom also misfeasance proceedings were taken against the directors of the company, they would not have approved the scheme under which the affairs of the company are once again relegated into the hands of the
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Raja Jagdambika Pratap Narain Singh Vs. Central Board Of Direct Taxes & Ors | for instance, if there is a flagrant violation of natural justice, the order by a Tribunal may be a nullity. However, we need not explore this penumbral area because we are satisfied, for reasons to be set out below, that the writ petition itself is misconceived and is bad for unexplained delay. Even so we may state that the levies for the various years would have undoubtedly been set aside and refund ordered if only the assessee had been diligent enough to make annual appeals to higher authorities. In that sense there is some justice on his side. What is more, in some of the orders, as earlier indicated, the Income-tax Officer himself has stated that he is making the assessments finally but he takes note of the pendency of the identical question before the High Court. He has vaguely quickened wishful thinking in the assessee that in the event of his winning in the High Court he may somehow get a refund. We have set out what Mr. Manchanda has pressed before us as the justice of his case, Assuming for a moment that justice is on his side, law is against him because the assessment orders are now unassailable except perhaps under Article 226 or Article 32 with which we will deal separately. Can a court over-ride law to effectuate what it conceives to be justice?11. Any legal system, especially one evolving in a developing country, may permit judges to play a creative role and innovate to ensure. Justice without doing violence to the norms set by legislation. But to invoke judicial activism to set at nought legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. So viewed, the appeal of Sri Manchanda, for relief in the name of justice must fail. If the statute speaks on the subject the judge has to be silent and stop. In a contest between morality and legality, the court, in clear cases has no option. Here, both sides agree that the assessments are final, that limitation has long ago run out, that the Central Board has no judicial power to upset what has been decided by lesser tribunals. Not being a fringe area for judicial activism to play the submission must suffer rejection.12. The surviving issue of some moment is whether the writ jurisdiction is muzzled by statutory finality to orders regardless of their illegality. We think not. If the levy is illegal, the constitutional remedy goes into action. The Privy Council ruling does not contradict this rule of law because for one thing there the case was income taxable but for a statutory exemption; here the income is agricultural and beyond the orbit of the Income-tax Act. For another, the judicial Committee was not considering the sweep of the constitutional remedy de hors statutory challenges but was construing the plea of nullity with reference to an order passed, erroneously may be, but within jurisdiction and impugned before the statutory tribunals.13. Even so, the journey of the appellant is beset with insurmountable hurdles. Article 226 is not a blanket power, regardless of temporal and discretionary restraints. If a party is inexplicably insouciant and unduly belated due to laches, the court may ordinarily deny redress. And if the High Court has exercised its discretion to refuse, this Court declines to disturb such exercise unless the ground is too untenable. To awaken this Courts special power gross injustice and grievous departure from well-established criteria in this jurisdiction, have to be made out. In the present case, long years have elapsed not only after the impugned orders but even after the High Court held the taxed income agricultural. The reason for the inaction is stated to be an illusory expectation of suo motu modification of assessment orders on representation by the party. The High Court has examined and dismissed the plea and consequentially refused relief. We do not think that in so refusing relief on ground of laches the High Court exercised its discretion arbitrarily or improperly. And the sorry story must thus close.14. When at the end of the legal tether, the appellant made a plaintive plea for considerateness based on good conscience. No doubt, we feel this is a case where, had the party not been optimistically asleep but had diligently appealed, the tax could not have been recovered by the State. We equally see some compassionate merit in his complaint that a few of the assessment orders made misleading reference to the pendency of the High Court being seized of the identical legal issue. But it is no good alibi in expiation of the sin of gross delay in coming to the High Court. It is doubtful if the Central Board can exercise any judicial power and direct refund. Nor is there a statutory duty cast on it to consider applications for refund and so a writ of mandamus could not issue from the Court. Even so, it is always open to the State, where the justice of the case warrants reconsideration of the levy of a tax illegally imposed, to view the situation from an equitable standpoint and direct refund, wholly or in part. This perhaps, is a case where a liberal approach may well be justified. The Court has, however, jurisdiction only when there is a statutory duty. There being none, the issuance of a writ hardly arises. We endorse the observations of the High Court that, despite inordinate delay, the appellate authority, if moved under Section 30 (2), will give due regard to the happenings in between, in exercising its power of condonation of delay in filing appeals. We also make it clear that no observation made in this judgment with regard to delay on the part of the assessee in moving the High Court, under Art 226 shall be taken into account to the prejudice of the assessee while considering the condonation of the delay on his part in preferring the appeal/appeals, if any, filed by him to the appropriate authority under the Act. | 0[ds]We have no reason to disagree with this view and proceed to dispose of this writ appeal which has come to us by certificate under Art. 133 (1) (a) of the constitution on the footing that for all the assessment years with which we are concerned - as will be explained presently - what has been taxed and is in dispute is agriculturalis true that two stark facts generate some considerations of conscience in favour of the assessee. The High Court having declared this kind of income which was taxed by the Income-tax Officer, agricultural income, it is not liable to tax under the Income-tax Act (Section 4 (3). In any case, after the Constitution of India came into force, the Union List in the Seventh Schedule expressly excluded agricultural income as forbidden zone for the Centre, so much so it would be an unconstitutional levy if a taxing authority imposed tax on agricultural income purporting to act under the Income-tax Act. It may, therefore, well be argued that all the assessments, notwithstanding that no appeals were filed, were void being beyond the jurisdiction of the officer tois a basic difference between the decision in Commr. of IT v. Tribune Trust Lahore, 16 ITR 214, 223 = (AIR 1948 PC 102 at p, 106) cited by, Sri Ramachandran and the present case. There, one of the exemptions statutorily provided in favour of income derived from property held under trust wholly for religious or charitable purposes, fell for consideration.True, mere exemptions from taxation of income , otherwise competently taxable fell wholly within the jurisdiction of the officer for determination. There is a fundamental difference where the claim is that agricultural income is beyond the legislative competence of Parliament to enact and altogether outside the jurisdiction of the Income-tax Officer. It may well be contended that the impost is ultra vires his powers and therefore a nullity. Merely because an order has been passed by the Officer and has not been appealed against, it does not become legal and final if otherwise it is void; for instance, if there is a flagrant violation of natural justice, the order by a Tribunal may be a nullity. However, we need not explore this penumbral area because we are satisfied, for reasons to be set out below, that the writ petition itself is misconceived and is bad for unexplained delay. Even so we may state that the levies for the various years would have undoubtedly been set aside and refund ordered if only the assessee had been diligent enough to make annual appeals to higher authorities. In that sense there is some justice on his side. What is more, in some of the orders, as earlier indicated, the Income-tax Officer himself has stated that he is making the assessments finally but he takes note of the pendency of the identical question before the High Court. He has vaguely quickened wishful thinking in the assessee that in the event of his winning in the High Court he may somehow get a refund. We have set out what Mr. Manchanda has pressed before us as the justice of his case, Assuming for a moment that justice is on his side, law is against him because the assessment orders are now unassailable except perhaps under Article 226 or Article 32 with which we will dealboth sides agree that the assessments are final, that limitation has long ago run out, that the Central Board has no judicial power to upset what has been decided by lesser tribunals. Not being a fringe area for judicial activism to play the submission must sufferthink not. If the levy is illegal, the constitutional remedy goes into action. The Privy Council ruling does not contradict this rule of law because for one thing there the case was income taxable but for a statutory exemption; here the income is agricultural and beyond the orbit of the Income-tax Act. For another, the judicial Committee was not considering the sweep of the constitutional remedy de hors statutory challenges but was construing the plea of nullity with reference to an order passed, erroneously may be, but within jurisdiction and impugned before the statutory tribunals.13. Even so, the journey of the appellant is beset with insurmountable hurdles. Article 226 is not a blanket power, regardless of temporal and discretionary restraints. If a party is inexplicably insouciant and unduly belated due to laches, the court may ordinarily deny redress. And if the High Court has exercised its discretion to refuse, this Court declines to disturb such exercise unless the ground is too untenable. To awaken this Courts special power gross injustice and grievous departure from well-established criteria in this jurisdiction, have to be made out. In the present case, long years have elapsed not only after the impugned orders but even after the High Court held the taxed income agricultural. The reason for the inaction is stated to be an illusory expectation of suo motu modification of assessment orders on representation by the party. The High Court has examined and dismissed the plea and consequentially refused relief. We do not think that in so refusing relief on ground of laches the High Court exercised its discretion arbitrarily or improperly. And the sorry story must thus close.14. When at the end of the legal tether, the appellant made a plaintive plea for considerateness based on good conscience. No doubt, we feel this is a case where, had the party not been optimistically asleep but had diligently appealed, the tax could not have been recovered by the State. We equally see some compassionate merit in his complaint that a few of the assessment orders made misleading reference to the pendency of the High Court being seized of the identical legal issue. But it is no good alibi in expiation of the sin of gross delay in coming to the High Court. It is doubtful if the Central Board can exercise any judicial power and direct refund. Nor is there a statutory duty cast on it to consider applications for refund and so a writ of mandamus could not issue from the Court. Even so, it is always open to the State, where the justice of the case warrants reconsideration of the levy of a tax illegally imposed, to view the situation from an equitable standpoint and direct refund, wholly or in part. This perhaps, is a case where a liberal approach may well be justified. The Court has, however, jurisdiction only when there is a statutory duty. There being none, the issuance of a writ hardly arises. We endorse the observations of the High Court that, despite inordinate delay, the appellate authority, if moved under Section 30 (2), will give due regard to the happenings in between, in exercising its power of condonation of delay in filing appeals. We also make it clear that no observation made in this judgment with regard to delay on the part of the assessee in moving the High Court, under Art 226 shall be taken into account to the prejudice of the assessee while considering the condonation of the delay on his part in preferring the appeal/appeals, if any, filed by him to the appropriate authority under the Act. | 0 | 3,328 | 1,321 | ### 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:
for instance, if there is a flagrant violation of natural justice, the order by a Tribunal may be a nullity. However, we need not explore this penumbral area because we are satisfied, for reasons to be set out below, that the writ petition itself is misconceived and is bad for unexplained delay. Even so we may state that the levies for the various years would have undoubtedly been set aside and refund ordered if only the assessee had been diligent enough to make annual appeals to higher authorities. In that sense there is some justice on his side. What is more, in some of the orders, as earlier indicated, the Income-tax Officer himself has stated that he is making the assessments finally but he takes note of the pendency of the identical question before the High Court. He has vaguely quickened wishful thinking in the assessee that in the event of his winning in the High Court he may somehow get a refund. We have set out what Mr. Manchanda has pressed before us as the justice of his case, Assuming for a moment that justice is on his side, law is against him because the assessment orders are now unassailable except perhaps under Article 226 or Article 32 with which we will deal separately. Can a court over-ride law to effectuate what it conceives to be justice?11. Any legal system, especially one evolving in a developing country, may permit judges to play a creative role and innovate to ensure. Justice without doing violence to the norms set by legislation. But to invoke judicial activism to set at nought legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. So viewed, the appeal of Sri Manchanda, for relief in the name of justice must fail. If the statute speaks on the subject the judge has to be silent and stop. In a contest between morality and legality, the court, in clear cases has no option. Here, both sides agree that the assessments are final, that limitation has long ago run out, that the Central Board has no judicial power to upset what has been decided by lesser tribunals. Not being a fringe area for judicial activism to play the submission must suffer rejection.12. The surviving issue of some moment is whether the writ jurisdiction is muzzled by statutory finality to orders regardless of their illegality. We think not. If the levy is illegal, the constitutional remedy goes into action. The Privy Council ruling does not contradict this rule of law because for one thing there the case was income taxable but for a statutory exemption; here the income is agricultural and beyond the orbit of the Income-tax Act. For another, the judicial Committee was not considering the sweep of the constitutional remedy de hors statutory challenges but was construing the plea of nullity with reference to an order passed, erroneously may be, but within jurisdiction and impugned before the statutory tribunals.13. Even so, the journey of the appellant is beset with insurmountable hurdles. Article 226 is not a blanket power, regardless of temporal and discretionary restraints. If a party is inexplicably insouciant and unduly belated due to laches, the court may ordinarily deny redress. And if the High Court has exercised its discretion to refuse, this Court declines to disturb such exercise unless the ground is too untenable. To awaken this Courts special power gross injustice and grievous departure from well-established criteria in this jurisdiction, have to be made out. In the present case, long years have elapsed not only after the impugned orders but even after the High Court held the taxed income agricultural. The reason for the inaction is stated to be an illusory expectation of suo motu modification of assessment orders on representation by the party. The High Court has examined and dismissed the plea and consequentially refused relief. We do not think that in so refusing relief on ground of laches the High Court exercised its discretion arbitrarily or improperly. And the sorry story must thus close.14. When at the end of the legal tether, the appellant made a plaintive plea for considerateness based on good conscience. No doubt, we feel this is a case where, had the party not been optimistically asleep but had diligently appealed, the tax could not have been recovered by the State. We equally see some compassionate merit in his complaint that a few of the assessment orders made misleading reference to the pendency of the High Court being seized of the identical legal issue. But it is no good alibi in expiation of the sin of gross delay in coming to the High Court. It is doubtful if the Central Board can exercise any judicial power and direct refund. Nor is there a statutory duty cast on it to consider applications for refund and so a writ of mandamus could not issue from the Court. Even so, it is always open to the State, where the justice of the case warrants reconsideration of the levy of a tax illegally imposed, to view the situation from an equitable standpoint and direct refund, wholly or in part. This perhaps, is a case where a liberal approach may well be justified. The Court has, however, jurisdiction only when there is a statutory duty. There being none, the issuance of a writ hardly arises. We endorse the observations of the High Court that, despite inordinate delay, the appellate authority, if moved under Section 30 (2), will give due regard to the happenings in between, in exercising its power of condonation of delay in filing appeals. We also make it clear that no observation made in this judgment with regard to delay on the part of the assessee in moving the High Court, under Art 226 shall be taken into account to the prejudice of the assessee while considering the condonation of the delay on his part in preferring the appeal/appeals, if any, filed by him to the appropriate authority under the Act.
### Response:
0
### Explanation:
ITR 214, 223 = (AIR 1948 PC 102 at p, 106) cited by, Sri Ramachandran and the present case. There, one of the exemptions statutorily provided in favour of income derived from property held under trust wholly for religious or charitable purposes, fell for consideration.True, mere exemptions from taxation of income , otherwise competently taxable fell wholly within the jurisdiction of the officer for determination. There is a fundamental difference where the claim is that agricultural income is beyond the legislative competence of Parliament to enact and altogether outside the jurisdiction of the Income-tax Officer. It may well be contended that the impost is ultra vires his powers and therefore a nullity. Merely because an order has been passed by the Officer and has not been appealed against, it does not become legal and final if otherwise it is void; for instance, if there is a flagrant violation of natural justice, the order by a Tribunal may be a nullity. However, we need not explore this penumbral area because we are satisfied, for reasons to be set out below, that the writ petition itself is misconceived and is bad for unexplained delay. Even so we may state that the levies for the various years would have undoubtedly been set aside and refund ordered if only the assessee had been diligent enough to make annual appeals to higher authorities. In that sense there is some justice on his side. What is more, in some of the orders, as earlier indicated, the Income-tax Officer himself has stated that he is making the assessments finally but he takes note of the pendency of the identical question before the High Court. He has vaguely quickened wishful thinking in the assessee that in the event of his winning in the High Court he may somehow get a refund. We have set out what Mr. Manchanda has pressed before us as the justice of his case, Assuming for a moment that justice is on his side, law is against him because the assessment orders are now unassailable except perhaps under Article 226 or Article 32 with which we will dealboth sides agree that the assessments are final, that limitation has long ago run out, that the Central Board has no judicial power to upset what has been decided by lesser tribunals. Not being a fringe area for judicial activism to play the submission must sufferthink not. If the levy is illegal, the constitutional remedy goes into action. The Privy Council ruling does not contradict this rule of law because for one thing there the case was income taxable but for a statutory exemption; here the income is agricultural and beyond the orbit of the Income-tax Act. For another, the judicial Committee was not considering the sweep of the constitutional remedy de hors statutory challenges but was construing the plea of nullity with reference to an order passed, erroneously may be, but within jurisdiction and impugned before the statutory tribunals.13. Even so, the journey of the appellant is beset with insurmountable hurdles. Article 226 is not a blanket power, regardless of temporal and discretionary restraints. If a party is inexplicably insouciant and unduly belated due to laches, the court may ordinarily deny redress. And if the High Court has exercised its discretion to refuse, this Court declines to disturb such exercise unless the ground is too untenable. To awaken this Courts special power gross injustice and grievous departure from well-established criteria in this jurisdiction, have to be made out. In the present case, long years have elapsed not only after the impugned orders but even after the High Court held the taxed income agricultural. The reason for the inaction is stated to be an illusory expectation of suo motu modification of assessment orders on representation by the party. The High Court has examined and dismissed the plea and consequentially refused relief. We do not think that in so refusing relief on ground of laches the High Court exercised its discretion arbitrarily or improperly. And the sorry story must thus close.14. When at the end of the legal tether, the appellant made a plaintive plea for considerateness based on good conscience. No doubt, we feel this is a case where, had the party not been optimistically asleep but had diligently appealed, the tax could not have been recovered by the State. We equally see some compassionate merit in his complaint that a few of the assessment orders made misleading reference to the pendency of the High Court being seized of the identical legal issue. But it is no good alibi in expiation of the sin of gross delay in coming to the High Court. It is doubtful if the Central Board can exercise any judicial power and direct refund. Nor is there a statutory duty cast on it to consider applications for refund and so a writ of mandamus could not issue from the Court. Even so, it is always open to the State, where the justice of the case warrants reconsideration of the levy of a tax illegally imposed, to view the situation from an equitable standpoint and direct refund, wholly or in part. This perhaps, is a case where a liberal approach may well be justified. The Court has, however, jurisdiction only when there is a statutory duty. There being none, the issuance of a writ hardly arises. We endorse the observations of the High Court that, despite inordinate delay, the appellate authority, if moved under Section 30 (2), will give due regard to the happenings in between, in exercising its power of condonation of delay in filing appeals. We also make it clear that no observation made in this judgment with regard to delay on the part of the assessee in moving the High Court, under Art 226 shall be taken into account to the prejudice of the assessee while considering the condonation of the delay on his part in preferring the appeal/appeals, if any, filed by him to the appropriate authority under the Act.
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Sri Sivalaya Advances and Ors Vs. Tax Recovery Officer - 2, Income Tax Offices, Madurai | the petitioners is formidable, on a closer scrutiny, the legal position is totally otherwise. As per Rule 11(3) of the second schedule, the objector or claimant must adduce evidence to show that in the case of immovable property on the date of the service of the notice issued under this schedule to pay arrears, he had some interest in or was possessed of the property in question. The notice referred to in Rule 11(3)(a) is obviously the notice under Rule 2. It cannot be disputed that on the said date the present writ petitioners did not have any interest in the property in question and they were also not in possession of it. 15. Rule 11 (3) of the Second Schedule to the Income Tax Act deals with two categories. One is immovable property and the other is movable property. Rule 11(3)(a) pertains to immovable property while Rule 11(3)(b) relates to movable property. In the case of movable property, the claimant or objector must adduce evidence to show that on the date of attachment, he had some interest in or was possessed of the property in question. On the other hand, in the case of immovable property, the claimant or objector must adduce evidence to show that at the date of service of the notice issued under this schedule to pay the arrears, he had some interest in or was possessed of the property in question. Thus, there is a significant distinction between the language used in the case of immovable property on the one hand and movable property on the other. In the case of movable property, the relevant date is the date of attachment. But, in the case of immovable property, the material date is the date of service of Rule 2 Notice. This Court is of the view that failure to note this difference in the language has led to conceptual confusion vitiating the entire process of reasoning. 16. More than anything else, as rightly pointed out by the learned standing counsel for the respondent Department, any attachment of an immovable property made under the second schedule would relate back to and take effect from the date on which the notice to pay the arrears issued under II schedule was served on the defaulter. This legal effect of Rule 51 of second schedule cannot be overcome. In this case, this Court, therefore, comes to the conclusion that the attachment made subsequent to the purchase by the writ petitioners would relate back to and take effect from 05.01.2013 onwards. 17. It is true that as strongly contended by the learned counsel for the petitioners, if two interpretations are possible, the one that is beneficial to the assessee must be preferred. But, in this case, this Court has absolutely no doubt that on a plain reading of the relevant provisions, only one interpretation is possible and that one is in favour of the Revenue. 18. The learned counsel for the petitioners would submit that Rule 11(3)(a) of the second schedule cannot have an over-riding effect over the proviso to Section 281 of the Income Tax Act. But, as held by the learned single Judge of this Court in 1998-2-L.W.288 (cited supra), the Section 281 and Rule 11 of the second schedule operate distinctly and independent of each other. 19. The learned counsel appearing for the petitioners would further contend that Rule 16(2) of second schedule clearly states that where the attachment was made under the schedule, any alienation that takes place thereafter alone shall be void. But then Rule 16(2) cannot be read in isolation. It is not a standalone provision. It must be read together and in conjunction with Rule 51. Hence, the submission of the learned counsel appearing for the petitioners cannot be accepted. 20. The learned counsel appearing for the petitioners also emphasised that this Court should defer to the decision rendered by the Division Bench of the Gujarat High Court. But this Court is unable to agree with the said submission. It is true that the Division Bench of this Court in the decision reported in [1986] 159 ITR 646 (Mad) observed that it is an acceptable principle in the matter of construction of an Indian statute as far as possible that there must be uniformity of construction and if the provision of law which falls for consideration before the Court has already been construed by another High Court, normally that construction should be accepted. But then the Honourable Division Bench also added a caveat that if there are compelling reasons to depart from the view taken by the other High Court, the said construction need not be accepted. This Court is of the considered opinion that there are compelling reasons to depart from the view taken by the Division Bench of the Gujarat High Court. Again as already pointed out, this Court is treading the path taken by the Honble Division Bench of the Punjab and Haryana High Court. 21. Yet the orders impugned in these writ petitions cannot sustained as such. The Honble Supreme Court in (1998) 6 SCC 658 has held that it is the function of the civil Court to declare a transaction to be null and void and that the Tax Recovery Officer cannot exercise the said function. Therefore, the respondent clearly erred in declaring the transactions to which the petitioners are parties as null and void. Therefore, the orders impugned in these writ petitions stand quashed to that extent. It would certainly be open to the petitioners herein to avail the remedy set out in Rule 11(6) of the second schedule of the Income Tax Act. If the respondent authority wants to have the transactions nullified, it is the respondent who must go to the civil Court to seek declaration to that effect. If the writ petitioners want the attachment to be lifted, it is for them to move the civil Court and obtain relief as provided in Rule 11(6) of the second schedule of the Income Tax Act. | 1[ds]7. This Court carefully considered the rival contentions. Two facts are not in dispute. The vendor of the writ petitioners herein is a defaulter-assessee and that he alienated the subject properties only after receipt of notice under Rule 2 of the Second Schedule to the Income Tax Act. Secondly, the orders of attachment were issued by the respondent only after such purchase by the writ petitioners hereinGoing by the plain language of the said section, it is clear that the main provision is concerned only with those transactions executed by the assessee during the pendency of any proceedings under the Income Tax Act or after the completion thereof, but before the service of notice under Rule 2 of the second schedule. In this case, it is evident from the face of the record and it is again not in dispute that notice under Rule 2 of second schedule was served on the defaulter on 05.01.2013 and that the sale transactions executed by the said defaulter-assessee took place thereafter. Therefore, this Court is of the view that it would not be open to the purchasers to claim the benefit of the proviso to Section 281 (1) of the Act13. In this case, the property belonged to the defaulter-assessee. He had been served with notice under Rule 2. The moment such a notice was served on the defaulter-assessee, by virtue of Rule 16(1) of the second schedule, he became incompetent to deal with the property. In Rule 16(1), it is expressly stated that the defaulter assessee shall not be competent to deal with the property. If the vendor was not competent to deal with the property, he could not have passed any valid or legal title to the purchaser. Thus, the issue has to be approached through the prism of Section 11 of the Contract Act, 1872Though on the face of it the submission of the learned counsel appearing for the petitioners is formidable, on a closer scrutiny, the legal position is totally otherwise. As per Rule 11(3) of the second schedule, the objector or claimant must adduce evidence to show that in the case of immovable property on the date of the service of the notice issued under this schedule to pay arrears, he had some interest in or was possessed of the property in question. The notice referred to in Rule 11(3)(a) is obviously the notice under Rule 2. It cannot be disputed that on the said date the present writ petitioners did not have any interest in the property in question and they were also not in possession of it15. Rule 11 (3) of the Second Schedule to the Income Tax Act deals with two categories. One is immovable property and the other is movable property. Rule 11(3)(a) pertains to immovable property while Rule 11(3)(b) relates to movable property. In the case of movable property, the claimant or objector must adduce evidence to show that on the date of attachment, he had some interest in or was possessed of the property in question. On the other hand, in the case of immovable property, the claimant or objector must adduce evidence to show that at the date of service of the notice issued under this schedule to pay the arrears, he had some interest in or was possessed of the property in question. Thus, there is a significant distinction between the language used in the case of immovable property on the one hand and movable property on the other. In the case of movable property, the relevant date is the date of attachment. But, in the case of immovable property, the material date is the date of service of Rule 2 Notice. This Court is of the view that failure to note this difference in the language has led to conceptual confusion vitiating the entire process of reasoning16. More than anything else, as rightly pointed out by the learned standing counsel for the respondent Department, any attachment of an immovable property made under the second schedule would relate back to and take effect from the date on which the notice to pay the arrears issued under II schedule was served on the defaulter. This legal effect of Rule 51 of second schedule cannot be overcome. In this case, this Court, therefore, comes to the conclusion that the attachment made subsequent to the purchase by the writ petitioners would relate back to and take effect from 05.01.2013 onwards17. It is true that as stronglycontended by the learned counsel for the petitioners, if two interpretations are possible, the one that is beneficial to the assessee must be. But, in this case, this Court has absolutely no doubt that on a plain reading of the relevant provisions, only one interpretation is possible and that one is in favour of the RevenueBut this Court is unable to agree with the said submission. It is true that the Division Bench of this Court in the decision reported in [1986] 159 ITR 646 (Mad) observed that it is an acceptable principle in the matter of construction of an Indian statute as far as possible that there must be uniformity of construction and if the provision of law which falls for consideration before the Court has already been construed by another High Court, normally that construction should be accepted. But then the Honourable Division Bench also added a caveat that if there are compelling reasons to depart from the view taken by the other High Court, the said construction need not be accepted. This Court is of the considered opinion that there are compelling reasons to depart from the view taken by the Division Bench of the Gujarat High Court. Again as already pointed out, this Court is treading the path taken by the Honble Division Bench of the Punjab and Haryana High Court21. Yet the orders impugned in these writ petitions cannot sustained as such. The Honble Supreme Court in (1998) 6 SCC 658 has held that it is the function of the civil Court to declare a transaction to be null and void and that the Tax Recovery Officer cannot exercise the said function. Therefore, the respondent clearly erred in declaring the transactions to which the petitioners are parties as null and void. Therefore, the orders impugned in these writ petitions stand quashed to that extent. It would certainly be open to the petitioners herein to avail the remedy set out in Rule 11(6) of the second schedule of the Income Tax Act. If the respondent authority wants to have the transactions nullified, it is the respondent who must go to the civil Court to seek declaration to that effect. If the writ petitioners want the attachment to be lifted, it is for them to move the civil Court and obtain relief as provided in Rule 11(6) of the second schedule of the Income Tax Act. | 1 | 4,239 | 1,275 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the petitioners is formidable, on a closer scrutiny, the legal position is totally otherwise. As per Rule 11(3) of the second schedule, the objector or claimant must adduce evidence to show that in the case of immovable property on the date of the service of the notice issued under this schedule to pay arrears, he had some interest in or was possessed of the property in question. The notice referred to in Rule 11(3)(a) is obviously the notice under Rule 2. It cannot be disputed that on the said date the present writ petitioners did not have any interest in the property in question and they were also not in possession of it. 15. Rule 11 (3) of the Second Schedule to the Income Tax Act deals with two categories. One is immovable property and the other is movable property. Rule 11(3)(a) pertains to immovable property while Rule 11(3)(b) relates to movable property. In the case of movable property, the claimant or objector must adduce evidence to show that on the date of attachment, he had some interest in or was possessed of the property in question. On the other hand, in the case of immovable property, the claimant or objector must adduce evidence to show that at the date of service of the notice issued under this schedule to pay the arrears, he had some interest in or was possessed of the property in question. Thus, there is a significant distinction between the language used in the case of immovable property on the one hand and movable property on the other. In the case of movable property, the relevant date is the date of attachment. But, in the case of immovable property, the material date is the date of service of Rule 2 Notice. This Court is of the view that failure to note this difference in the language has led to conceptual confusion vitiating the entire process of reasoning. 16. More than anything else, as rightly pointed out by the learned standing counsel for the respondent Department, any attachment of an immovable property made under the second schedule would relate back to and take effect from the date on which the notice to pay the arrears issued under II schedule was served on the defaulter. This legal effect of Rule 51 of second schedule cannot be overcome. In this case, this Court, therefore, comes to the conclusion that the attachment made subsequent to the purchase by the writ petitioners would relate back to and take effect from 05.01.2013 onwards. 17. It is true that as strongly contended by the learned counsel for the petitioners, if two interpretations are possible, the one that is beneficial to the assessee must be preferred. But, in this case, this Court has absolutely no doubt that on a plain reading of the relevant provisions, only one interpretation is possible and that one is in favour of the Revenue. 18. The learned counsel for the petitioners would submit that Rule 11(3)(a) of the second schedule cannot have an over-riding effect over the proviso to Section 281 of the Income Tax Act. But, as held by the learned single Judge of this Court in 1998-2-L.W.288 (cited supra), the Section 281 and Rule 11 of the second schedule operate distinctly and independent of each other. 19. The learned counsel appearing for the petitioners would further contend that Rule 16(2) of second schedule clearly states that where the attachment was made under the schedule, any alienation that takes place thereafter alone shall be void. But then Rule 16(2) cannot be read in isolation. It is not a standalone provision. It must be read together and in conjunction with Rule 51. Hence, the submission of the learned counsel appearing for the petitioners cannot be accepted. 20. The learned counsel appearing for the petitioners also emphasised that this Court should defer to the decision rendered by the Division Bench of the Gujarat High Court. But this Court is unable to agree with the said submission. It is true that the Division Bench of this Court in the decision reported in [1986] 159 ITR 646 (Mad) observed that it is an acceptable principle in the matter of construction of an Indian statute as far as possible that there must be uniformity of construction and if the provision of law which falls for consideration before the Court has already been construed by another High Court, normally that construction should be accepted. But then the Honourable Division Bench also added a caveat that if there are compelling reasons to depart from the view taken by the other High Court, the said construction need not be accepted. This Court is of the considered opinion that there are compelling reasons to depart from the view taken by the Division Bench of the Gujarat High Court. Again as already pointed out, this Court is treading the path taken by the Honble Division Bench of the Punjab and Haryana High Court. 21. Yet the orders impugned in these writ petitions cannot sustained as such. The Honble Supreme Court in (1998) 6 SCC 658 has held that it is the function of the civil Court to declare a transaction to be null and void and that the Tax Recovery Officer cannot exercise the said function. Therefore, the respondent clearly erred in declaring the transactions to which the petitioners are parties as null and void. Therefore, the orders impugned in these writ petitions stand quashed to that extent. It would certainly be open to the petitioners herein to avail the remedy set out in Rule 11(6) of the second schedule of the Income Tax Act. If the respondent authority wants to have the transactions nullified, it is the respondent who must go to the civil Court to seek declaration to that effect. If the writ petitioners want the attachment to be lifted, it is for them to move the civil Court and obtain relief as provided in Rule 11(6) of the second schedule of the Income Tax Act.
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under Rule 2 of second schedule was served on the defaulter on 05.01.2013 and that the sale transactions executed by the said defaulter-assessee took place thereafter. Therefore, this Court is of the view that it would not be open to the purchasers to claim the benefit of the proviso to Section 281 (1) of the Act13. In this case, the property belonged to the defaulter-assessee. He had been served with notice under Rule 2. The moment such a notice was served on the defaulter-assessee, by virtue of Rule 16(1) of the second schedule, he became incompetent to deal with the property. In Rule 16(1), it is expressly stated that the defaulter assessee shall not be competent to deal with the property. If the vendor was not competent to deal with the property, he could not have passed any valid or legal title to the purchaser. Thus, the issue has to be approached through the prism of Section 11 of the Contract Act, 1872Though on the face of it the submission of the learned counsel appearing for the petitioners is formidable, on a closer scrutiny, the legal position is totally otherwise. As per Rule 11(3) of the second schedule, the objector or claimant must adduce evidence to show that in the case of immovable property on the date of the service of the notice issued under this schedule to pay arrears, he had some interest in or was possessed of the property in question. The notice referred to in Rule 11(3)(a) is obviously the notice under Rule 2. It cannot be disputed that on the said date the present writ petitioners did not have any interest in the property in question and they were also not in possession of it15. Rule 11 (3) of the Second Schedule to the Income Tax Act deals with two categories. One is immovable property and the other is movable property. Rule 11(3)(a) pertains to immovable property while Rule 11(3)(b) relates to movable property. In the case of movable property, the claimant or objector must adduce evidence to show that on the date of attachment, he had some interest in or was possessed of the property in question. On the other hand, in the case of immovable property, the claimant or objector must adduce evidence to show that at the date of service of the notice issued under this schedule to pay the arrears, he had some interest in or was possessed of the property in question. Thus, there is a significant distinction between the language used in the case of immovable property on the one hand and movable property on the other. In the case of movable property, the relevant date is the date of attachment. But, in the case of immovable property, the material date is the date of service of Rule 2 Notice. This Court is of the view that failure to note this difference in the language has led to conceptual confusion vitiating the entire process of reasoning16. More than anything else, as rightly pointed out by the learned standing counsel for the respondent Department, any attachment of an immovable property made under the second schedule would relate back to and take effect from the date on which the notice to pay the arrears issued under II schedule was served on the defaulter. This legal effect of Rule 51 of second schedule cannot be overcome. In this case, this Court, therefore, comes to the conclusion that the attachment made subsequent to the purchase by the writ petitioners would relate back to and take effect from 05.01.2013 onwards17. It is true that as stronglycontended by the learned counsel for the petitioners, if two interpretations are possible, the one that is beneficial to the assessee must be. But, in this case, this Court has absolutely no doubt that on a plain reading of the relevant provisions, only one interpretation is possible and that one is in favour of the RevenueBut this Court is unable to agree with the said submission. It is true that the Division Bench of this Court in the decision reported in [1986] 159 ITR 646 (Mad) observed that it is an acceptable principle in the matter of construction of an Indian statute as far as possible that there must be uniformity of construction and if the provision of law which falls for consideration before the Court has already been construed by another High Court, normally that construction should be accepted. But then the Honourable Division Bench also added a caveat that if there are compelling reasons to depart from the view taken by the other High Court, the said construction need not be accepted. This Court is of the considered opinion that there are compelling reasons to depart from the view taken by the Division Bench of the Gujarat High Court. Again as already pointed out, this Court is treading the path taken by the Honble Division Bench of the Punjab and Haryana High Court21. Yet the orders impugned in these writ petitions cannot sustained as such. The Honble Supreme Court in (1998) 6 SCC 658 has held that it is the function of the civil Court to declare a transaction to be null and void and that the Tax Recovery Officer cannot exercise the said function. Therefore, the respondent clearly erred in declaring the transactions to which the petitioners are parties as null and void. Therefore, the orders impugned in these writ petitions stand quashed to that extent. It would certainly be open to the petitioners herein to avail the remedy set out in Rule 11(6) of the second schedule of the Income Tax Act. If the respondent authority wants to have the transactions nullified, it is the respondent who must go to the civil Court to seek declaration to that effect. If the writ petitioners want the attachment to be lifted, it is for them to move the civil Court and obtain relief as provided in Rule 11(6) of the second schedule of the Income Tax Act.
|
DLF HOMES PANCHKULA (P) LTD. THROUGH ITS AUTHORISED SIGNATORY MR. SHIV KUMAR Vs. SUSHILA DEVI | hearing learned counsel for both sides, this Court had passed following directions: - 8. Having regard to the above submission, we indicated to the learned counsel appearing on behalf of the flat purchasers that it would be appropriate if the interest as ordered by NCDRC at 9% per annum is made payable over the period which was determined by the Order of the SCDRC. There is no objection by the flat purchasers to the aforesaid modification being made. Even otherwise, we are of the view that such a modification would be required in the interests of justice since it was the appellants who had questioned the Order of the SCDRC before the NCDRC. 9. In the above facts and circumstances, we confirm the direction of the NCDRC that the appellants shall pay interest @ 9 per cent per annum. However, the period over which interest shall be payable will be in conformity with the order passed by the SCDRC. 10. We also direct that in computing the interest payable in terms of the Order of the NCDRC to the extent modified above, the appellants would be entitled to credit for the compensation, if any, which has been paid to any flat buyer in terms of Clause 15 of the flat purchase agreements. In other words, the amount of interest payable shall be computed after deducting any amount that has been paid to the concerned flat buyer under Clause 15 of the agreement. 11. The amount which has been deposited in this Court in pursuance of the order dated 18.5.2018, shall be transferred by the Registry to the Registrar of the SCDRC, Chandigarh. The appellants shall, within a period of two weeks from today, file a detailed computation with reference to each of the flat buyers and the amount which is due and payable in pursuance of the above directions. The amount shall be duly verified before disbursal, on proper identification, to each of the flat buyers. After completing the above exercise, in the event, that any amount (inclusive of the accrued interest) remains surplus, it shall be refunded to the appellants. 12. Upon the transfer of the amount, the SCDRC shall keep the amount in a short term fixed deposit until the stage of disbursement is reached. The civil appeals are disposed of. 9. When the present appeals were taken up, all the parties agreed that these appeals be disposed of in terms with the directions issued by this Court in Himanshu Aroras case. We, therefore, directed the Developer to file a Chart in consultation with all the complainants and indicate what modalities be adopted. After such Chart was filed, it was agreed that wherever compensation was to be awarded, it should be in the form of interest @ 9% and the governing principles be as under:- (a) In all Refund cases, the award of interest @ 9% would be payable in respect of deposits from the day they were made till the date of refund. (b) In cases where, upon transfer, a subsequent purchaser had stepped into the shoes of the original allottee and had prayed for Refund, the reckoning date for computing the interest be from the date of his transfer in respect of all the amounts that were deposited by the original allottee and if any subsequent deposits were made by the transferee, from the dates of such deposits; (c) In cases where Possession was sought, the period available to the Developer under the agreement being three years (that is to say original period of two years which was extendable, at the option of the Developer, by further period of one year) ought not to be computed while calculating compensation in the form of interest. Therefore, the period to be reckoned shall be after expiry of three years from the date of agreement and in respect of such period the compensation shall be at the same rate of 9%. (d) In Possession cases, if there was any transfer and the transferee had stepped into the shoes of the original allottee, the compensation shall be paid from the date of expiry of three years from the agreement as aforesaid or from the date of transfer, whichever is later. 10. The matter was, thereafter, adjourned so that the parties could check and reconcile all the concerned amounts and present a mutually acceptable statement of figures. Accordingly, the Chart has been presented which is appended to this Judgment as Annexure-A. 11. Column No.13 of the tabulated chart denotes element of interest @ 9% while Column No.16 denotes the amount that had been received by the Developer. Column No.14 shows the amounts of FDRs deposited by the Developer in respect of every Complainant, while Column No.17 shows amount payable to every Complainant or recoverable from such Complainant wherever excess amount was deposited. According to the Chart, Serial Nos.1 to 17 are Refund cases where Possession was not prayed for. Out of these 17 cases, those at serial nos. 9 and 16 were already settled and as such their cases shall not form part of this group of appeals. Case at serial no.17 was a transfer case in the category of Refund cases and as such would be governed by principle (b) as stated hereabove. Rest of the cases in the Refund category will be governed by principle (a) stated hereinabove except the case of Colonel Naresh Kumar Kohli, whose name is at Serial No.14 which will be subject to modification as stated hereafter. 12. According to Colonel Kohli, the fact that he had deposited Rs.62,04,014/- was not disputed at any juncture either before the State Commission or the National Commission and in fact FDR in that sum already stood deposited by the Developer. However, in his case Column No.16 wrongly mentioned figure of Rs.60,54,812/- and consequently the amount payable in Column No.17 was wrongly shown as Rs.24,60,356/-. We heard learned counsel for the Developer and Colonel Kohli on this issue and find that the submission made by Colonel Kohli deserves acceptance. | 1[ds]11. Column No.13 of the tabulated chart denotes element of interest @ 9% while Column No.16 denotes the amount that had been received by the Developer. Column No.14 shows the amounts of FDRs deposited by the Developer in respect of every Complainant, while Column No.17 shows amount payable to every Complainant or recoverable from such Complainant wherever excess amount was deposited. According to the Chart, Serial Nos.1 to 17 are Refund cases where Possession was not prayed for. Out of these 17 cases, those at serial nos. 9 and 16 were already settled and as such their casesshall not form part of this group of appeals. Case at serial no.17 was a transfer case in the category of Refund cases and as such would be governed by principle (b) as stated hereabove. Rest of the cases in the Refund category will be governed by principle (a) stated hereinabove except the case of Colonel Naresh Kumar Kohli, whose name is at Serial No.14 which will be subject to modification as stated hereafter12. According to Colonel Kohli, the fact that he had deposited Rs.62,04,014/- was not disputed at any juncture either before the State Commission or the National Commission and in fact FDR in that sum already stood deposited by the Developer. However, in his case Column No.16 wrongly mentioned figure of Rs.60,54,812/- and consequently the amountpayable in Column No.17 was wrongly shown as Rs.24,60,356/-. We heard learned counsel for the Developer and Colonel Kohli on this issue and find that the submission made by Colonel Kohli deserves acceptance.13. We now turn to Possession cases which are tabulated from serial nos. 18 to 48 (except case at serial no. 32). Let the case of Mr. Gautam Kashyup at Serial No.32, namely Special Leave Petition (Civil)No. 968 of 2019 be listed before a regular Court. All other matters in Possession category stand disposed of in terms of the directions (c) and (d) as issued above14. Except to the extent any exception or modification stated in this Judgment every person in Refund and Possession categories is aggregable to the disposal of their matters in terms of the understanding as above and the governing principles set out earlier. | 1 | 1,979 | 406 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
hearing learned counsel for both sides, this Court had passed following directions: - 8. Having regard to the above submission, we indicated to the learned counsel appearing on behalf of the flat purchasers that it would be appropriate if the interest as ordered by NCDRC at 9% per annum is made payable over the period which was determined by the Order of the SCDRC. There is no objection by the flat purchasers to the aforesaid modification being made. Even otherwise, we are of the view that such a modification would be required in the interests of justice since it was the appellants who had questioned the Order of the SCDRC before the NCDRC. 9. In the above facts and circumstances, we confirm the direction of the NCDRC that the appellants shall pay interest @ 9 per cent per annum. However, the period over which interest shall be payable will be in conformity with the order passed by the SCDRC. 10. We also direct that in computing the interest payable in terms of the Order of the NCDRC to the extent modified above, the appellants would be entitled to credit for the compensation, if any, which has been paid to any flat buyer in terms of Clause 15 of the flat purchase agreements. In other words, the amount of interest payable shall be computed after deducting any amount that has been paid to the concerned flat buyer under Clause 15 of the agreement. 11. The amount which has been deposited in this Court in pursuance of the order dated 18.5.2018, shall be transferred by the Registry to the Registrar of the SCDRC, Chandigarh. The appellants shall, within a period of two weeks from today, file a detailed computation with reference to each of the flat buyers and the amount which is due and payable in pursuance of the above directions. The amount shall be duly verified before disbursal, on proper identification, to each of the flat buyers. After completing the above exercise, in the event, that any amount (inclusive of the accrued interest) remains surplus, it shall be refunded to the appellants. 12. Upon the transfer of the amount, the SCDRC shall keep the amount in a short term fixed deposit until the stage of disbursement is reached. The civil appeals are disposed of. 9. When the present appeals were taken up, all the parties agreed that these appeals be disposed of in terms with the directions issued by this Court in Himanshu Aroras case. We, therefore, directed the Developer to file a Chart in consultation with all the complainants and indicate what modalities be adopted. After such Chart was filed, it was agreed that wherever compensation was to be awarded, it should be in the form of interest @ 9% and the governing principles be as under:- (a) In all Refund cases, the award of interest @ 9% would be payable in respect of deposits from the day they were made till the date of refund. (b) In cases where, upon transfer, a subsequent purchaser had stepped into the shoes of the original allottee and had prayed for Refund, the reckoning date for computing the interest be from the date of his transfer in respect of all the amounts that were deposited by the original allottee and if any subsequent deposits were made by the transferee, from the dates of such deposits; (c) In cases where Possession was sought, the period available to the Developer under the agreement being three years (that is to say original period of two years which was extendable, at the option of the Developer, by further period of one year) ought not to be computed while calculating compensation in the form of interest. Therefore, the period to be reckoned shall be after expiry of three years from the date of agreement and in respect of such period the compensation shall be at the same rate of 9%. (d) In Possession cases, if there was any transfer and the transferee had stepped into the shoes of the original allottee, the compensation shall be paid from the date of expiry of three years from the agreement as aforesaid or from the date of transfer, whichever is later. 10. The matter was, thereafter, adjourned so that the parties could check and reconcile all the concerned amounts and present a mutually acceptable statement of figures. Accordingly, the Chart has been presented which is appended to this Judgment as Annexure-A. 11. Column No.13 of the tabulated chart denotes element of interest @ 9% while Column No.16 denotes the amount that had been received by the Developer. Column No.14 shows the amounts of FDRs deposited by the Developer in respect of every Complainant, while Column No.17 shows amount payable to every Complainant or recoverable from such Complainant wherever excess amount was deposited. According to the Chart, Serial Nos.1 to 17 are Refund cases where Possession was not prayed for. Out of these 17 cases, those at serial nos. 9 and 16 were already settled and as such their cases shall not form part of this group of appeals. Case at serial no.17 was a transfer case in the category of Refund cases and as such would be governed by principle (b) as stated hereabove. Rest of the cases in the Refund category will be governed by principle (a) stated hereinabove except the case of Colonel Naresh Kumar Kohli, whose name is at Serial No.14 which will be subject to modification as stated hereafter. 12. According to Colonel Kohli, the fact that he had deposited Rs.62,04,014/- was not disputed at any juncture either before the State Commission or the National Commission and in fact FDR in that sum already stood deposited by the Developer. However, in his case Column No.16 wrongly mentioned figure of Rs.60,54,812/- and consequently the amount payable in Column No.17 was wrongly shown as Rs.24,60,356/-. We heard learned counsel for the Developer and Colonel Kohli on this issue and find that the submission made by Colonel Kohli deserves acceptance.
### Response:
1
### Explanation:
11. Column No.13 of the tabulated chart denotes element of interest @ 9% while Column No.16 denotes the amount that had been received by the Developer. Column No.14 shows the amounts of FDRs deposited by the Developer in respect of every Complainant, while Column No.17 shows amount payable to every Complainant or recoverable from such Complainant wherever excess amount was deposited. According to the Chart, Serial Nos.1 to 17 are Refund cases where Possession was not prayed for. Out of these 17 cases, those at serial nos. 9 and 16 were already settled and as such their casesshall not form part of this group of appeals. Case at serial no.17 was a transfer case in the category of Refund cases and as such would be governed by principle (b) as stated hereabove. Rest of the cases in the Refund category will be governed by principle (a) stated hereinabove except the case of Colonel Naresh Kumar Kohli, whose name is at Serial No.14 which will be subject to modification as stated hereafter12. According to Colonel Kohli, the fact that he had deposited Rs.62,04,014/- was not disputed at any juncture either before the State Commission or the National Commission and in fact FDR in that sum already stood deposited by the Developer. However, in his case Column No.16 wrongly mentioned figure of Rs.60,54,812/- and consequently the amountpayable in Column No.17 was wrongly shown as Rs.24,60,356/-. We heard learned counsel for the Developer and Colonel Kohli on this issue and find that the submission made by Colonel Kohli deserves acceptance.13. We now turn to Possession cases which are tabulated from serial nos. 18 to 48 (except case at serial no. 32). Let the case of Mr. Gautam Kashyup at Serial No.32, namely Special Leave Petition (Civil)No. 968 of 2019 be listed before a regular Court. All other matters in Possession category stand disposed of in terms of the directions (c) and (d) as issued above14. Except to the extent any exception or modification stated in this Judgment every person in Refund and Possession categories is aggregable to the disposal of their matters in terms of the understanding as above and the governing principles set out earlier.
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V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others | 10 in the category of Lower Division Clerks, i.e., much higher to the respondents Nos. 3 to 15. Had a list been prepared as on 1st September, 1976 in accordance with prescribed rules and instructions the petitioners by virtue of their high seniority among the Lower Division Clerks stood a fair chance of being appointed to the Higher Grade. The inevitable result of the delay in the preparation of the list has been that respondents Nos. 3 to 15, who were juniors to the petitioners in the category of Lower Division Clerks, have been promoted as Sub-Registrars Grade II and the petitioners who were senior to those respondents have been denied their legitimate chance of promotion. The petitioners in the two representation petition, therefore, prayed for concellation of the appointment of respondents Nos. 3 to 15 and for their appointment in the vacancies that existed from 1st September, 1976 to 31st August, 1977. The petitioners further sought direction to the respondents Nos. 1 and 2 to prepare a panel or list of the Upper Division Clerks and Lower Division Clerks eligible for appointment by transfer as Sub-Registrar Grade II according to old rule 5 of Andhra Pradesh Registration and Subordinate Service Rules and to make appointments by transfer with retrospective effect out of the panel for vacancies arising during the said period.5. The claims of the petitioners in the representation petitions were resisted on various grounds : (1) that the Inspector-General of Registration and Stamps was under an obligation to prepare the panels of the Sub-Registrars from time to time, but he was no obliged to prepare the same annually; (2) that the delay in the preparation of the panel as on 1st September, 1976 was not actuated by any motive but it was consequent upon the implementation of the new rules whereunder the posts of Sub-Registrars which were of State-wide cadres, were made zone-wise with effect from 18th of October, 1975, and (3) that the allocation of posts and personnel among the zones had to be made by the Government.6. The Tribunal on consideration of the materials on record came to the conclusion that the vacancies that arose between the preparation of the panels in December, 1975 and April, 1977 were right, and that there was no reason why panel for that period should not have been drawn up at all. It is true that after 18th of October, 1975 the zones came into existence and, therefore, promotions to the grade of Sub-Registrar were require to be made on zonal basis, but after the personnel had been allocated to various zones, the task of preparing the annual panel with reference to the vacancies arising during the period 1976-77 should have been taken up on the basis of the seniority list for Zone IV. Had such a list been prepared according to the Andhra Pradesh Registration and Subordinate Service Rules, the eligibility of the candidates would naturally have been considered without reference to the amendment issued in March, 1977. On these findings the Tribunal held that the action taken by the Inspector-General of Registration and Stamps to make appointments against vacancies arising during the period 1976-77 from amongst the left-overs of the panels drawn up in April, 1975 and to dispense with the preparation of panel for 1976-77 was in violation of the rules and thus liable to be set aside, and it directed the State of Andhra Pradesh and the Inspector-General of Registration and Stamps to draw up a fresh panel for the year 1976-77 with reference to the vacancies pertaining to that period should be filled on the basis of such a panel. Since the amendment to the rules was made in March, 1977, it follows that for vacancies relating to the panel year 1977-78 and subsequent year the panels will have to be prepared in accordance with the rules as they were amended by G.O. Ms. No. 265-Revenue (UI) dated 22nd March, 1977.7. The order of the Tribunal has given rise to two sets of appeals mentioned above, one by Y. V. Rangaiah and others, and the others by the State of Andhra Pradesh and another.8. The contention on behalf of the appellants herein is that by the time the list was prepared in May, 1977 rule 5 of the Andhra Pradesh Registration and Subordinate Service Rules was amended and the list prepared was in accordance with the rules then prevailing at the time of preparation, and therefore there was nothing wrong with the preparation of the panel. It was further contended that the petitioners in the two representation petitions having not challenged the validity of the amendment to rule 5 of the Andhra Pradesh Registration and Subordinate Service Rules, it was not open to them to challenge the list prepared in May, 1977 which is in accordance with rules prevailing at that time.9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and therefore, there was no question of challenging the new rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules. | 0[ds]9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post ofGrade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post ofGrade II will be according to the new rules on the zonal basis and not on thebasis and therefore, there was no question of challenging the new rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules. | 0 | 1,917 | 204 | ### Instruction:
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10 in the category of Lower Division Clerks, i.e., much higher to the respondents Nos. 3 to 15. Had a list been prepared as on 1st September, 1976 in accordance with prescribed rules and instructions the petitioners by virtue of their high seniority among the Lower Division Clerks stood a fair chance of being appointed to the Higher Grade. The inevitable result of the delay in the preparation of the list has been that respondents Nos. 3 to 15, who were juniors to the petitioners in the category of Lower Division Clerks, have been promoted as Sub-Registrars Grade II and the petitioners who were senior to those respondents have been denied their legitimate chance of promotion. The petitioners in the two representation petition, therefore, prayed for concellation of the appointment of respondents Nos. 3 to 15 and for their appointment in the vacancies that existed from 1st September, 1976 to 31st August, 1977. The petitioners further sought direction to the respondents Nos. 1 and 2 to prepare a panel or list of the Upper Division Clerks and Lower Division Clerks eligible for appointment by transfer as Sub-Registrar Grade II according to old rule 5 of Andhra Pradesh Registration and Subordinate Service Rules and to make appointments by transfer with retrospective effect out of the panel for vacancies arising during the said period.5. The claims of the petitioners in the representation petitions were resisted on various grounds : (1) that the Inspector-General of Registration and Stamps was under an obligation to prepare the panels of the Sub-Registrars from time to time, but he was no obliged to prepare the same annually; (2) that the delay in the preparation of the panel as on 1st September, 1976 was not actuated by any motive but it was consequent upon the implementation of the new rules whereunder the posts of Sub-Registrars which were of State-wide cadres, were made zone-wise with effect from 18th of October, 1975, and (3) that the allocation of posts and personnel among the zones had to be made by the Government.6. The Tribunal on consideration of the materials on record came to the conclusion that the vacancies that arose between the preparation of the panels in December, 1975 and April, 1977 were right, and that there was no reason why panel for that period should not have been drawn up at all. It is true that after 18th of October, 1975 the zones came into existence and, therefore, promotions to the grade of Sub-Registrar were require to be made on zonal basis, but after the personnel had been allocated to various zones, the task of preparing the annual panel with reference to the vacancies arising during the period 1976-77 should have been taken up on the basis of the seniority list for Zone IV. Had such a list been prepared according to the Andhra Pradesh Registration and Subordinate Service Rules, the eligibility of the candidates would naturally have been considered without reference to the amendment issued in March, 1977. On these findings the Tribunal held that the action taken by the Inspector-General of Registration and Stamps to make appointments against vacancies arising during the period 1976-77 from amongst the left-overs of the panels drawn up in April, 1975 and to dispense with the preparation of panel for 1976-77 was in violation of the rules and thus liable to be set aside, and it directed the State of Andhra Pradesh and the Inspector-General of Registration and Stamps to draw up a fresh panel for the year 1976-77 with reference to the vacancies pertaining to that period should be filled on the basis of such a panel. Since the amendment to the rules was made in March, 1977, it follows that for vacancies relating to the panel year 1977-78 and subsequent year the panels will have to be prepared in accordance with the rules as they were amended by G.O. Ms. No. 265-Revenue (UI) dated 22nd March, 1977.7. The order of the Tribunal has given rise to two sets of appeals mentioned above, one by Y. V. Rangaiah and others, and the others by the State of Andhra Pradesh and another.8. The contention on behalf of the appellants herein is that by the time the list was prepared in May, 1977 rule 5 of the Andhra Pradesh Registration and Subordinate Service Rules was amended and the list prepared was in accordance with the rules then prevailing at the time of preparation, and therefore there was nothing wrong with the preparation of the panel. It was further contended that the petitioners in the two representation petitions having not challenged the validity of the amendment to rule 5 of the Andhra Pradesh Registration and Subordinate Service Rules, it was not open to them to challenge the list prepared in May, 1977 which is in accordance with rules prevailing at that time.9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and therefore, there was no question of challenging the new rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.
### Response:
0
### Explanation:
9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post ofGrade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post ofGrade II will be according to the new rules on the zonal basis and not on thebasis and therefore, there was no question of challenging the new rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.
|
The Cachar Chah Sramik Union Silchar, Assam Vs. The Management Of The Tea Estate Of Cachar,Assam | be given by the employer and workmen.Notice of termination of employment, whether by Manager or by worker, shall be given equal to the wage-period of the worker concerned.Provided that-(a) the Manager may terminate the employment of a worker forthwith and pay his wages for the wage-period (equivalent to his average earnings over the preceding period of three months) in lieu of notice.(b) Notice of termination of employment shall be necessary only in case of permanent workers and not in the case of outside or temporary workers except in so far is laid down in any agreement entered into between the Manager and such outside or temporary workers.(c) ..............................(d) Where the employment of any worker is terminated the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day on which his employment is terminated................................"The Tribunal has found that there was no victimisation on unfair labour practice or mala fide on the part of the management in closing the gardens or in making the retrenchment. Mr. Aggarwala on behalf of the appellant did not challenge the finding of the Tribunal on this point, but learned Counsel argued that even if the management was justified, the workmen were entitled to payment of compensation according to the scale laid down in S. 25F of the Industrial Disputes Act. It was conceded by learned Counsel that Ch. VA which contains S. 25F came into force on October 24, 1953 by amending Act 43 of 1953 and the retrenchment in the present case was effected long before that date. It was, however, contended that the principle embodied in S. 25F should be applied in the present case. It was said that by enacting Ch. VA the legislature was merely recognising the practice of payment of compensation by Labour Tribunal before the date of the amendment and the legislature decided, by the amendment, to standardise the payment of compensation by prescribing a statutory rule in that behalf (See Indian Hume Pipe Co. Ltd. v. Workmen, (1960) 2 SCR 32 at p. 42: (AIR 1960 SC 251 at p. 256). There is substance in the argument put forward on behalf of the appellant and the Tribunal has also applied this principle in granting compensation to the retrenched workmen even though the case was not attracted by S. 25F of the Industrial Disputes Act. But the Tribunal has taken the view that one weeks wages for every four months of unemployment was adequate compensation. The contention of the appellant is that the compensation should have been awarded on the scale laid down in S. 25F of the Industrial Disputes Act. We are unable to accept this argument as correct.As pointed out by this Court in (1960) 2 SCR 32 at p. 42: (AIR 1960 SC 251 at p. 256), Industrial Tribunal had been awarding compensation even before the enactment of S. 25F but there was no uniformity or certainty in the matter and in determining the amount of compensation the Tribunals considered a variety of relevant factors. It is manifest that in determining the amount of compensation the Tribunals exercised complete discretion and took into account whatever factors they considered relevant.In the present case, the Tribunal has estimated the amount of compensation as one weeks wages for every four months of unemployment and it is not shown on behalf of the appellant that in making this estimate the Tribunal has committed any error of law or applied any wrong principle.7. As regards the compensation to retrenched workmen, the Tribunal has stated in para 185 of the Award that the amenities granted to them included undisturbed possession of residential quarters and khet lands. They were also granted medical relief, fuel and other forest produce even during the period of suspension of work. The Tribunal did not attempt to evaluate accurately the pecuniary value of all these concessions but it has expressed the view that the value of these concessions would be roughly equal to one weeks wages for every four months of unemployment and therefore the retrenched workmen were not entitled to any compensation in cash apart from any right to wages in lieu of a weeks notice under Cl. 9 of the Standing Orders. On behalf of the appellant Mr. Aggarwala said that the retrenched workmen were entitled to get a larger amount of compensation than that awarded by the Tribunal.The quantum of compensation is, however, a matter primarily for the Tribunal to estimate and it is not open to this Court to go into this question unless it is shown that Tribunal has committed any error of law or legal principle in deciding it.As regards the workmen who were subjected to short hours of work, the Tribunal has observed that they have been granted ex gratia payments which were, in several cases in excess of the total loss of wages by reason of the revision of the daily wages under the notification of February 9, 1953 under the Minimum Wages Act. On behalf of the appellant reference was made by Mr. Aggarwala to the deposition of Mr. R. M. Bipan at page 97, Part-I that the ex gratia payment compensated merely for the minimum wages cut and not the loss to labour by the short work-week. But the Tribunal having examined the entire evidence reached the conclusion that the ex gratia payment was in several cases in excess of total loss of remuneration on account of the notification under the Minimum Wages Act.There is also undisputed evidence in this case to show that even in normal times short hours had to be imposed by employers upto a period of three days in a week in Cachar tea gardens. In this state of facts it is not possible for us to hold that the Tribunal was in error in holding that the ex gratia payment made by the management was sufficient compensation to the workmen who were not retrenched outright but who were put on short hours of work. | 0[ds]The Tribunal has found that there was no victimisation on unfair labour practice or mala fide on the part of the management in closing the gardens or in making the retrenchment. Mr.Aggarwala on behalf of the appellant did not challenge the finding of the Tribunal on this point, but learned Counsel argued that even if the management was justified, the workmen were entitled to payment of compensation according to the scale laid down in S. 25F of the Industrial Disputes Act. It was conceded by learned Counsel that Ch. VA which contains S. 25F came into force on October 24, 1953 by amending Act 43 of 1953 and the retrenchment in the present case was effected long before that date. It was, however, contended that the principle embodied in S. 25F should be applied in the present case. It was said that by enacting Ch. VA the legislature was merely recognising the practice of payment of compensation by Labour Tribunal before the date of the amendment and the legislature decided, by the amendment, to standardise the payment of compensation by prescribing a statutory rule in that behalf (See Indian Hume Pipe Co. Ltd. v. Workmen, (1960) 2 SCR 32 at p. 42: (AIR 1960 SC 251 at p. 256).There is substance in the argument put forward on behalf of the appellant and the Tribunal has also applied this principle in granting compensation to the retrenched workmen even though the case was not attracted by S. 25F of the Industrial Disputes Act. But the Tribunal has taken the view that one weeks wages for every four months of unemployment was adequate compensation. The contention of the appellant is that the compensation should have been awarded on the scale laid down in S. 25F of the Industrial Disputes Act. We are unable to accept this argument as correct.As pointed out by this Court in (1960) 2 SCR 32 at p. 42: (AIR 1960 SC 251 at p. 256), Industrial Tribunal had been awarding compensation even before the enactment of S. 25F but there was no uniformity or certainty in the matter and in determining the amount of compensation the Tribunals considered a variety of relevant factors. It is manifest that in determining the amount of compensation the Tribunals exercised complete discretion and took into account whatever factors they considered relevant.In the present case, the Tribunal has estimated the amount of compensation as one weeks wages for every four months of unemployment and it is not shown on behalf of the appellant that in making this estimate the Tribunal has committed any error of law or applied any wrongprinciple.7. As regards the compensation to retrenched workmen, the Tribunal has stated in para 185 of the Award that the amenities granted to them included undisturbed possession of residential quarters and khet lands. They were also granted medical relief, fuel and other forest produce even during the period of suspension of work. The Tribunal did not attempt to evaluate accurately the pecuniary value of all these concessions but it has expressed the view that the value of these concessions would be roughly equal to one weeks wages for every four months of unemployment and therefore the retrenched workmen were not entitled to any compensation in cash apart from any right to wages in lieu of a weeks notice under Cl. 9 of the Standing Orders. On behalf of the appellant Mr. Aggarwala said that the retrenched workmen were entitled to get a larger amount of compensation than that awarded by the Tribunal.The quantum of compensation is, however, a matter primarily for the Tribunal to estimate and it is not open to this Court to go into this question unless it is shown that Tribunal has committed any error of law or legal principle in deciding it.As regards the workmen who were subjected to short hours of work, the Tribunal has observed that they have been granted ex gratia payments which were, in several cases in excess of the total loss of wages by reason of the revision of the daily wages under the notification of February 9, 1953 under the Minimum Wages Act. On behalf of the appellant reference was made by Mr. Aggarwala to the deposition of Mr. R. M. Bipan at page 97,that the ex gratia payment compensated merely for the minimum wages cut and not the loss to labour by the shortBut the Tribunal having examined the entire evidence reached the conclusion that the ex gratia payment was in several cases in excess of total loss of remuneration on account of the notification under the Minimum Wages Act.There is also undisputed evidence in this case to show that even in normal times short hours had to be imposed by employers upto a period of three days in a week in Cachar tea gardens. In this state of facts it is not possible for us to hold that the Tribunal was in error in holding that the ex gratia payment made by the management was sufficient compensation to the workmen who were not retrenched outright but who were put on short hours of work. | 0 | 3,345 | 904 | ### Instruction:
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be given by the employer and workmen.Notice of termination of employment, whether by Manager or by worker, shall be given equal to the wage-period of the worker concerned.Provided that-(a) the Manager may terminate the employment of a worker forthwith and pay his wages for the wage-period (equivalent to his average earnings over the preceding period of three months) in lieu of notice.(b) Notice of termination of employment shall be necessary only in case of permanent workers and not in the case of outside or temporary workers except in so far is laid down in any agreement entered into between the Manager and such outside or temporary workers.(c) ..............................(d) Where the employment of any worker is terminated the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day on which his employment is terminated................................"The Tribunal has found that there was no victimisation on unfair labour practice or mala fide on the part of the management in closing the gardens or in making the retrenchment. Mr. Aggarwala on behalf of the appellant did not challenge the finding of the Tribunal on this point, but learned Counsel argued that even if the management was justified, the workmen were entitled to payment of compensation according to the scale laid down in S. 25F of the Industrial Disputes Act. It was conceded by learned Counsel that Ch. VA which contains S. 25F came into force on October 24, 1953 by amending Act 43 of 1953 and the retrenchment in the present case was effected long before that date. It was, however, contended that the principle embodied in S. 25F should be applied in the present case. It was said that by enacting Ch. VA the legislature was merely recognising the practice of payment of compensation by Labour Tribunal before the date of the amendment and the legislature decided, by the amendment, to standardise the payment of compensation by prescribing a statutory rule in that behalf (See Indian Hume Pipe Co. Ltd. v. Workmen, (1960) 2 SCR 32 at p. 42: (AIR 1960 SC 251 at p. 256). There is substance in the argument put forward on behalf of the appellant and the Tribunal has also applied this principle in granting compensation to the retrenched workmen even though the case was not attracted by S. 25F of the Industrial Disputes Act. But the Tribunal has taken the view that one weeks wages for every four months of unemployment was adequate compensation. The contention of the appellant is that the compensation should have been awarded on the scale laid down in S. 25F of the Industrial Disputes Act. We are unable to accept this argument as correct.As pointed out by this Court in (1960) 2 SCR 32 at p. 42: (AIR 1960 SC 251 at p. 256), Industrial Tribunal had been awarding compensation even before the enactment of S. 25F but there was no uniformity or certainty in the matter and in determining the amount of compensation the Tribunals considered a variety of relevant factors. It is manifest that in determining the amount of compensation the Tribunals exercised complete discretion and took into account whatever factors they considered relevant.In the present case, the Tribunal has estimated the amount of compensation as one weeks wages for every four months of unemployment and it is not shown on behalf of the appellant that in making this estimate the Tribunal has committed any error of law or applied any wrong principle.7. As regards the compensation to retrenched workmen, the Tribunal has stated in para 185 of the Award that the amenities granted to them included undisturbed possession of residential quarters and khet lands. They were also granted medical relief, fuel and other forest produce even during the period of suspension of work. The Tribunal did not attempt to evaluate accurately the pecuniary value of all these concessions but it has expressed the view that the value of these concessions would be roughly equal to one weeks wages for every four months of unemployment and therefore the retrenched workmen were not entitled to any compensation in cash apart from any right to wages in lieu of a weeks notice under Cl. 9 of the Standing Orders. On behalf of the appellant Mr. Aggarwala said that the retrenched workmen were entitled to get a larger amount of compensation than that awarded by the Tribunal.The quantum of compensation is, however, a matter primarily for the Tribunal to estimate and it is not open to this Court to go into this question unless it is shown that Tribunal has committed any error of law or legal principle in deciding it.As regards the workmen who were subjected to short hours of work, the Tribunal has observed that they have been granted ex gratia payments which were, in several cases in excess of the total loss of wages by reason of the revision of the daily wages under the notification of February 9, 1953 under the Minimum Wages Act. On behalf of the appellant reference was made by Mr. Aggarwala to the deposition of Mr. R. M. Bipan at page 97, Part-I that the ex gratia payment compensated merely for the minimum wages cut and not the loss to labour by the short work-week. But the Tribunal having examined the entire evidence reached the conclusion that the ex gratia payment was in several cases in excess of total loss of remuneration on account of the notification under the Minimum Wages Act.There is also undisputed evidence in this case to show that even in normal times short hours had to be imposed by employers upto a period of three days in a week in Cachar tea gardens. In this state of facts it is not possible for us to hold that the Tribunal was in error in holding that the ex gratia payment made by the management was sufficient compensation to the workmen who were not retrenched outright but who were put on short hours of work.
### Response:
0
### Explanation:
The Tribunal has found that there was no victimisation on unfair labour practice or mala fide on the part of the management in closing the gardens or in making the retrenchment. Mr.Aggarwala on behalf of the appellant did not challenge the finding of the Tribunal on this point, but learned Counsel argued that even if the management was justified, the workmen were entitled to payment of compensation according to the scale laid down in S. 25F of the Industrial Disputes Act. It was conceded by learned Counsel that Ch. VA which contains S. 25F came into force on October 24, 1953 by amending Act 43 of 1953 and the retrenchment in the present case was effected long before that date. It was, however, contended that the principle embodied in S. 25F should be applied in the present case. It was said that by enacting Ch. VA the legislature was merely recognising the practice of payment of compensation by Labour Tribunal before the date of the amendment and the legislature decided, by the amendment, to standardise the payment of compensation by prescribing a statutory rule in that behalf (See Indian Hume Pipe Co. Ltd. v. Workmen, (1960) 2 SCR 32 at p. 42: (AIR 1960 SC 251 at p. 256).There is substance in the argument put forward on behalf of the appellant and the Tribunal has also applied this principle in granting compensation to the retrenched workmen even though the case was not attracted by S. 25F of the Industrial Disputes Act. But the Tribunal has taken the view that one weeks wages for every four months of unemployment was adequate compensation. The contention of the appellant is that the compensation should have been awarded on the scale laid down in S. 25F of the Industrial Disputes Act. We are unable to accept this argument as correct.As pointed out by this Court in (1960) 2 SCR 32 at p. 42: (AIR 1960 SC 251 at p. 256), Industrial Tribunal had been awarding compensation even before the enactment of S. 25F but there was no uniformity or certainty in the matter and in determining the amount of compensation the Tribunals considered a variety of relevant factors. It is manifest that in determining the amount of compensation the Tribunals exercised complete discretion and took into account whatever factors they considered relevant.In the present case, the Tribunal has estimated the amount of compensation as one weeks wages for every four months of unemployment and it is not shown on behalf of the appellant that in making this estimate the Tribunal has committed any error of law or applied any wrongprinciple.7. As regards the compensation to retrenched workmen, the Tribunal has stated in para 185 of the Award that the amenities granted to them included undisturbed possession of residential quarters and khet lands. They were also granted medical relief, fuel and other forest produce even during the period of suspension of work. The Tribunal did not attempt to evaluate accurately the pecuniary value of all these concessions but it has expressed the view that the value of these concessions would be roughly equal to one weeks wages for every four months of unemployment and therefore the retrenched workmen were not entitled to any compensation in cash apart from any right to wages in lieu of a weeks notice under Cl. 9 of the Standing Orders. On behalf of the appellant Mr. Aggarwala said that the retrenched workmen were entitled to get a larger amount of compensation than that awarded by the Tribunal.The quantum of compensation is, however, a matter primarily for the Tribunal to estimate and it is not open to this Court to go into this question unless it is shown that Tribunal has committed any error of law or legal principle in deciding it.As regards the workmen who were subjected to short hours of work, the Tribunal has observed that they have been granted ex gratia payments which were, in several cases in excess of the total loss of wages by reason of the revision of the daily wages under the notification of February 9, 1953 under the Minimum Wages Act. On behalf of the appellant reference was made by Mr. Aggarwala to the deposition of Mr. R. M. Bipan at page 97,that the ex gratia payment compensated merely for the minimum wages cut and not the loss to labour by the shortBut the Tribunal having examined the entire evidence reached the conclusion that the ex gratia payment was in several cases in excess of total loss of remuneration on account of the notification under the Minimum Wages Act.There is also undisputed evidence in this case to show that even in normal times short hours had to be imposed by employers upto a period of three days in a week in Cachar tea gardens. In this state of facts it is not possible for us to hold that the Tribunal was in error in holding that the ex gratia payment made by the management was sufficient compensation to the workmen who were not retrenched outright but who were put on short hours of work.
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Labhkuwar Bhagwani Shaha and Others Vs. Janardhan Mahadeo Kalan and Another | resisted the suit contending that the landlords need was not bona fide and that defendant 2 had been let in possession of the suit godown as a sub-tenant in March 1959 and as such was protected under Ordinance 3 of 1959. The trial court decreed the suit upholding both the grounds put forward by the landlords. The matter was carried in appeal by defendant 2 alone and in appeal the finding with regard to bona fide requirement was reversed but the finding of unlawful sub-letting was confirmed and the decree for eviction was upheld. The appellant court, agreeing with the trial court, held that the sub-letting was after May 21, 1959, being the relevant date under Ordinance 3 of 1959. Defendant 2 preferred a writ petition under Article 227 of the Constitution to the High Court and the High Court surprisingly on reappreciation of the material on the record reversed the concurrent finding of both the lower courts as regards the actual date of sub-letting and it came to the conclusion that there was sub-letting in favour of defendant 2 in March 1959 and as such he was protected under Ordinance 3 of 1959. The landlords have preferred this appeal to this Court.3. for the appellants contended before us that the question as to what was the actual date of sub-letting, i.e. to say when was the 2nd defendant let in the suit godown as a sub-tenant was purely a question of fact and both the lower courts had on appreciation of the material placed on record by both the parties come to the conclusion that such sub-letting was long after May 21, 1959 and that therefore the 2nd defendant was not protected under the Bombay Rent Act read with the Ordinance. In reversing that finding, counsel contended, the High Court clearly exceeded its jurisdiction under Article 227 of the Constitution and we find force in this contention advanced by the counsel.4. It does appear that the High Court was impressed by the fact that the landlords own witness who was staying in the same building had made an admission in his deposition that defendant 2 was seen in premises in March 1959 and the High Court had felt that this admission, though not conclusive, would operate as an estoppel against the landlords, under the Evidence Act and lent support to the case of the 2nd defendant. The High Court also seems to have been impressed by the fact that defendant 2 had relied upon three/four receipts dated March 16, 1959, May 11, 1959, June 17, 1959 and July 20, 1959 respectively which he had produced showing payment of rent by him to defendant 1. If this material had been ignored by the lower courts it would have been a different matter. It was on an appreciation of this very material that the lower courts had come to a finding against the 2nd defendant. As regards the documentary evidence of the four receipts and an extract of account the lower courts had characterised the same as fabricated and not reliable. It appears that the trial court did not refer to admission made by the landlords witness but appellate court dealt with it and observed that no reliance could be placed on such solitary stray statement made by the witness; it may be stated that there was an admission made by defendant 1 himself to the effect that he had taken the godown on rent from the landlord in February or March 1959 and that defendant 2 had come on the scene four or five months thereafter which would mean that defendant 2 was let in long after May 21, 1959. In other words as against the admission made by the landlords witness there was the admission made by the defendant 1 which put defendant 2 out of the court. In this state of evidence the two courts below on appreciating the entire material had come to the conclusion that defendant 2 had come on the scene long after the relevant date under the Ordinance and was not entitled to any protection. The High Court felt it could reappreciate the material and come to its own conclusion because it was a jurisdictional fact that was required to be determined. Whether jurisdictional or otherwise it was purely a question of fact requiring adjudication on appreciation of evidence. It could not convert itself into even a mixed question of fact and law entitling the High Court to interfere. Nor was it any question of proper interpretation of the ordinance for being applied to the facts obtaining in the case. The question simply was what was the actual dates of sub-letting and the High Court under Article 227 could not interfere with the finding recorded by the lower courts on the point. The position in law in this behalf is well-settled and if necessary reference may be made two decisions of this Court in Babhutmal Raichand Oswal v. Laxmibai R. Tarte (AIR 1975 SC 1297 : (1975) 1 SCC 858 ) and Trimbak Gangadhar Telang v. Ramchandra Ganesh Bhide (AIR 1977 SC 1222 : (1977) 2 SCC 437 ).5. Counsel for the respondent relied upon a decision of this Court in Mohd. Shafi case (Mohd. Shafi v. VII Addl. Dist. & Sessions Judge, AIR 1977 SC 836 : (1977) 2 SCC 226 : (1977) 2 SCR 464 ) but in our view the same cannot avail the respondent. The question that arose there was whether Explanation (iv) to Section 21(1) of U.P. Act 13 of 1972 was attracted to that case and that depended upon the applicability to the facts of the correct interpretation of the Explanation and that was clearly a mixed question of law and fact and this Court held that if the High Court found that in reaching its conclusion on this question the District Court proceeded on a wrong interpretation of the Explanation the High Court could correct the error and set aside the conclusion reached by the District Court. | 1[ds]5. Counsel for the respondent relied upon a decision of this Court in Mohd. Shafi case (Mohd. Shafi v. VII Addl. Dist. & Sessions Judge, AIR 1977 SC 836 : (1977) 2 SCC 226 : (1977) 2 SCR 464 ) but in our view the same cannot avail the respondent. The question that arose there was whether Explanation (iv) to Section 21(1) of U.P. Act 13 of 1972 was attracted to that case and that depended upon the applicability to the facts of the correct interpretation of the Explanation and that was clearly a mixed question of law and fact and this Court held that if the High Court found that in reaching its conclusion on this question the District Court proceeded on a wrong interpretation of the Explanation the High Court could correct the error and set aside the conclusion reached by the District Court. | 1 | 1,174 | 170 | ### 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:
resisted the suit contending that the landlords need was not bona fide and that defendant 2 had been let in possession of the suit godown as a sub-tenant in March 1959 and as such was protected under Ordinance 3 of 1959. The trial court decreed the suit upholding both the grounds put forward by the landlords. The matter was carried in appeal by defendant 2 alone and in appeal the finding with regard to bona fide requirement was reversed but the finding of unlawful sub-letting was confirmed and the decree for eviction was upheld. The appellant court, agreeing with the trial court, held that the sub-letting was after May 21, 1959, being the relevant date under Ordinance 3 of 1959. Defendant 2 preferred a writ petition under Article 227 of the Constitution to the High Court and the High Court surprisingly on reappreciation of the material on the record reversed the concurrent finding of both the lower courts as regards the actual date of sub-letting and it came to the conclusion that there was sub-letting in favour of defendant 2 in March 1959 and as such he was protected under Ordinance 3 of 1959. The landlords have preferred this appeal to this Court.3. for the appellants contended before us that the question as to what was the actual date of sub-letting, i.e. to say when was the 2nd defendant let in the suit godown as a sub-tenant was purely a question of fact and both the lower courts had on appreciation of the material placed on record by both the parties come to the conclusion that such sub-letting was long after May 21, 1959 and that therefore the 2nd defendant was not protected under the Bombay Rent Act read with the Ordinance. In reversing that finding, counsel contended, the High Court clearly exceeded its jurisdiction under Article 227 of the Constitution and we find force in this contention advanced by the counsel.4. It does appear that the High Court was impressed by the fact that the landlords own witness who was staying in the same building had made an admission in his deposition that defendant 2 was seen in premises in March 1959 and the High Court had felt that this admission, though not conclusive, would operate as an estoppel against the landlords, under the Evidence Act and lent support to the case of the 2nd defendant. The High Court also seems to have been impressed by the fact that defendant 2 had relied upon three/four receipts dated March 16, 1959, May 11, 1959, June 17, 1959 and July 20, 1959 respectively which he had produced showing payment of rent by him to defendant 1. If this material had been ignored by the lower courts it would have been a different matter. It was on an appreciation of this very material that the lower courts had come to a finding against the 2nd defendant. As regards the documentary evidence of the four receipts and an extract of account the lower courts had characterised the same as fabricated and not reliable. It appears that the trial court did not refer to admission made by the landlords witness but appellate court dealt with it and observed that no reliance could be placed on such solitary stray statement made by the witness; it may be stated that there was an admission made by defendant 1 himself to the effect that he had taken the godown on rent from the landlord in February or March 1959 and that defendant 2 had come on the scene four or five months thereafter which would mean that defendant 2 was let in long after May 21, 1959. In other words as against the admission made by the landlords witness there was the admission made by the defendant 1 which put defendant 2 out of the court. In this state of evidence the two courts below on appreciating the entire material had come to the conclusion that defendant 2 had come on the scene long after the relevant date under the Ordinance and was not entitled to any protection. The High Court felt it could reappreciate the material and come to its own conclusion because it was a jurisdictional fact that was required to be determined. Whether jurisdictional or otherwise it was purely a question of fact requiring adjudication on appreciation of evidence. It could not convert itself into even a mixed question of fact and law entitling the High Court to interfere. Nor was it any question of proper interpretation of the ordinance for being applied to the facts obtaining in the case. The question simply was what was the actual dates of sub-letting and the High Court under Article 227 could not interfere with the finding recorded by the lower courts on the point. The position in law in this behalf is well-settled and if necessary reference may be made two decisions of this Court in Babhutmal Raichand Oswal v. Laxmibai R. Tarte (AIR 1975 SC 1297 : (1975) 1 SCC 858 ) and Trimbak Gangadhar Telang v. Ramchandra Ganesh Bhide (AIR 1977 SC 1222 : (1977) 2 SCC 437 ).5. Counsel for the respondent relied upon a decision of this Court in Mohd. Shafi case (Mohd. Shafi v. VII Addl. Dist. & Sessions Judge, AIR 1977 SC 836 : (1977) 2 SCC 226 : (1977) 2 SCR 464 ) but in our view the same cannot avail the respondent. The question that arose there was whether Explanation (iv) to Section 21(1) of U.P. Act 13 of 1972 was attracted to that case and that depended upon the applicability to the facts of the correct interpretation of the Explanation and that was clearly a mixed question of law and fact and this Court held that if the High Court found that in reaching its conclusion on this question the District Court proceeded on a wrong interpretation of the Explanation the High Court could correct the error and set aside the conclusion reached by the District Court.
### Response:
1
### Explanation:
5. Counsel for the respondent relied upon a decision of this Court in Mohd. Shafi case (Mohd. Shafi v. VII Addl. Dist. & Sessions Judge, AIR 1977 SC 836 : (1977) 2 SCC 226 : (1977) 2 SCR 464 ) but in our view the same cannot avail the respondent. The question that arose there was whether Explanation (iv) to Section 21(1) of U.P. Act 13 of 1972 was attracted to that case and that depended upon the applicability to the facts of the correct interpretation of the Explanation and that was clearly a mixed question of law and fact and this Court held that if the High Court found that in reaching its conclusion on this question the District Court proceeded on a wrong interpretation of the Explanation the High Court could correct the error and set aside the conclusion reached by the District Court.
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Director of Endowments, Government of Hyderabad & Others Vs. Akaram Ali | His will, as expressed in his Firman, was the law of the land. Therefore, even if it be assumed that the respondent was in possession, his rights to immediate possession, whatever they may have been, were taken away and held in abeyance till he could establish them in the civil Courts.The question now arises whether this enured after the Constitution and whether the respondents right to possession assuming he had any, revived when the Constitution came into being. We are clear that the Constitution effected no. change.12. It was conceded that the Nizam had power to confiscate the property and to take it away from the respondent in toto and it was conceded that if he had done so the rights so destroyed would not have revived because the Constitution only guarantees to a citizen such rights as he had at the date it came into force; it does not alter them or add to them : all it guarantees is that he shall not be deprived of such rights as he has except in such ways as the Constitution allows. But if the Nizam could take away every vestige of right by a Firman he could equally take away a part of them and at the date of the passing of the Constitution the respondent would only have the balance of the rights left to him and not the whole, for what applies to the whole applies equally to the part.Therefore, even if we accept all the respondents facts, the position would still be that at the date the Constitution came into force he had no. right to immediate possession; the utmost he had was right to be restored to possession if and when he established his rights in a Court a law.13. The High Court has relied on a decision of this Court in - Ameerunnissa Begum v. Mahboob Begum, AIR 1953 SC 91 (B), and has held that the Firmans of the Nazim that conflict with the Constitution are ultra vires. But the learned Judges have failed to observe that in that case the Firman was issued after the Constitution and not before. But it was argued that even if that decision does not apply there are others that do and they hold that a law which would have been bad if it had been passed after the Constitution ceases to have effect after that date.The decisions referred to were considered in - Syed Qasim Razi v. State of Hyderabad, AIR 1953 SC 156 (C) and the law laid down by the majority was this (page 161)."The effect of Art. 13(1) of the Constitution is not to obliterate the entire operation of the inconsistent laws of to wipe them out altogether from the statute book; for to do so will be to give them retrospective effect which they do not possess. Such laws must be held to be valid for all past transactions and for enforcing rights and liabilities accrued before the advern of the Constitution."That, in our opinion concludes the matter.14. The only question that remains is whether the respondent has obtained a decision in the civil Courts confirming his right to get possession of the Dargah plus whatever else of Eccelsiatical Department took- over under the Firman. As we have already indicated, the matter was agitated in the civil Courts. We need not trace the history of this litigation nor need we examine its fortunes from stage to stage. All we are concerned with is the final judgment which was given by the High Court.15. The suit was filed by Azam Ali who had been entrusted with the supervision of the Dargah by the Ecclesiastical Department in 1914 and who was removed in 1920. The present respondent Akram Ali was one of the defendants. When the matter reached the High Court the learned Judges found as follows :"The fact of the plaintiff" (Azam Ali) "or his ancestors or any of the descendants of the saint of the Dargah being a Sajjada is not established by the evidence. It is also not proved that there has been any other Sajjada in respect of this Dargah and that the office of Sajjadagi has been found or continued there ...... in our opinion the Sajjadagi of none of the defendants is proved.In fact, for the very reasons as given by us above none of the defendants is proved to be entitled to the office of Sajadagi. In the result, it is not proved that any one of the parties is entitled to the Sajjadagi. The objections to the evidence of the plaintiff apply equally to the evidence of the defandants and when the very existence of Sajjadagi in the Dargah Sharif is not proved, no. question remains as to who is the Sajjada.....It cannot be gainsaid that the evidence of the plaintiff is stronger and more weighty than the evidence of the defendants....If we were obliged to hold any one of the parties as Sajjada on the evidence produced, our judgement would have been in plaintiffs favour".The decisions of the lower Courts dismissing the plaintiffs suit were accordingly upheld.16. The learned counsel for the defendant-respondent argued that this judgment does not come in the way of this client because, even if he is not the Sajjada, that would make no. difference. He insists that his client was in possession at all relevant times, that is to say, he equates the brothers possession to that of his client and contends that now that the civil litigation has ended unfavourably to his oponent Azam Ali, the respondent must be restored to possession.But that is no. what the Firman says. The respondents rights, if any, at the date of the Constitution, and now, are that he must establish his right to possession in a civil Court before he can ask to be put in possession. There is no. decision of a civil Court declaring the respondents right to possession, therefore, on that short ground he cannot get the writ he seeks. | 1[ds]6. We do not intend to say anything about the facts of title and possession lest it prejudice further litigation, should there be any. We will assume, without deciding, that all that the respondent says about his hereditary rights and his possession is true. But whether he was in possession or not whatever rights to possession he may have had were held in abeyance by the Firman ofand there is no. subsequent order of the Civil Courts removing the bar.Therefore, as he has no. present right to possession, no. mandamus can be issued. We do not mean to imply that writ would be the appropriate remedy if and when the respondent can establish a right to possession : that is a question that does not arise because in fact he has no. present right toare clear that the Constitution effected no.even if we accept all the respondents facts, the position would still be that at the date the Constitution came into force he had no. right to immediate possession; the utmost he had was right to be restored to possession if and when he established his rights in a Court a law.13. The High Court has relied on a decision of this Court inAmeerunnissa Begum v. Mahboob Begum, AIR 1953 SC 91 (B), and has held that the Firmans of the Nazim that conflict with the Constitution are ultra vires. But the learned Judges have failed to observe that in that case the Firman was issued after the Constitution and not before. But it was argued that even if that decision does not apply there are others that do and they hold that a law which would have been bad if it had been passed after the Constitution ceases to have effect after that date.The decisions referred to were considered inSyed Qasim Razi v. State of Hyderabad, AIR 1953 SC 156 (C) and the law laid down by the majority was this (page 161)."The effect of Art. 13(1) of the Constitution is not to obliterate the entire operation of the inconsistent laws of to wipe them out altogether from the statute book; for to do so will be to give them retrospective effect which they do not possess. Such laws must be held to be valid for all past transactions and for enforcing rights and liabilities accrued before the advern of the Constitution."That, in our opinion concludes thethat is no. what the Firman says. The respondents rights, if any, at the date of the Constitution, and now, are that he must establish his right to possession in a civil Court before he can ask to be put in possession. There is no. decision of a civil Court declaring the respondents right to possession, therefore, on that short ground he cannot get the writ he seeks. | 1 | 2,380 | 522 | ### 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:
His will, as expressed in his Firman, was the law of the land. Therefore, even if it be assumed that the respondent was in possession, his rights to immediate possession, whatever they may have been, were taken away and held in abeyance till he could establish them in the civil Courts.The question now arises whether this enured after the Constitution and whether the respondents right to possession assuming he had any, revived when the Constitution came into being. We are clear that the Constitution effected no. change.12. It was conceded that the Nizam had power to confiscate the property and to take it away from the respondent in toto and it was conceded that if he had done so the rights so destroyed would not have revived because the Constitution only guarantees to a citizen such rights as he had at the date it came into force; it does not alter them or add to them : all it guarantees is that he shall not be deprived of such rights as he has except in such ways as the Constitution allows. But if the Nizam could take away every vestige of right by a Firman he could equally take away a part of them and at the date of the passing of the Constitution the respondent would only have the balance of the rights left to him and not the whole, for what applies to the whole applies equally to the part.Therefore, even if we accept all the respondents facts, the position would still be that at the date the Constitution came into force he had no. right to immediate possession; the utmost he had was right to be restored to possession if and when he established his rights in a Court a law.13. The High Court has relied on a decision of this Court in - Ameerunnissa Begum v. Mahboob Begum, AIR 1953 SC 91 (B), and has held that the Firmans of the Nazim that conflict with the Constitution are ultra vires. But the learned Judges have failed to observe that in that case the Firman was issued after the Constitution and not before. But it was argued that even if that decision does not apply there are others that do and they hold that a law which would have been bad if it had been passed after the Constitution ceases to have effect after that date.The decisions referred to were considered in - Syed Qasim Razi v. State of Hyderabad, AIR 1953 SC 156 (C) and the law laid down by the majority was this (page 161)."The effect of Art. 13(1) of the Constitution is not to obliterate the entire operation of the inconsistent laws of to wipe them out altogether from the statute book; for to do so will be to give them retrospective effect which they do not possess. Such laws must be held to be valid for all past transactions and for enforcing rights and liabilities accrued before the advern of the Constitution."That, in our opinion concludes the matter.14. The only question that remains is whether the respondent has obtained a decision in the civil Courts confirming his right to get possession of the Dargah plus whatever else of Eccelsiatical Department took- over under the Firman. As we have already indicated, the matter was agitated in the civil Courts. We need not trace the history of this litigation nor need we examine its fortunes from stage to stage. All we are concerned with is the final judgment which was given by the High Court.15. The suit was filed by Azam Ali who had been entrusted with the supervision of the Dargah by the Ecclesiastical Department in 1914 and who was removed in 1920. The present respondent Akram Ali was one of the defendants. When the matter reached the High Court the learned Judges found as follows :"The fact of the plaintiff" (Azam Ali) "or his ancestors or any of the descendants of the saint of the Dargah being a Sajjada is not established by the evidence. It is also not proved that there has been any other Sajjada in respect of this Dargah and that the office of Sajjadagi has been found or continued there ...... in our opinion the Sajjadagi of none of the defendants is proved.In fact, for the very reasons as given by us above none of the defendants is proved to be entitled to the office of Sajadagi. In the result, it is not proved that any one of the parties is entitled to the Sajjadagi. The objections to the evidence of the plaintiff apply equally to the evidence of the defandants and when the very existence of Sajjadagi in the Dargah Sharif is not proved, no. question remains as to who is the Sajjada.....It cannot be gainsaid that the evidence of the plaintiff is stronger and more weighty than the evidence of the defendants....If we were obliged to hold any one of the parties as Sajjada on the evidence produced, our judgement would have been in plaintiffs favour".The decisions of the lower Courts dismissing the plaintiffs suit were accordingly upheld.16. The learned counsel for the defendant-respondent argued that this judgment does not come in the way of this client because, even if he is not the Sajjada, that would make no. difference. He insists that his client was in possession at all relevant times, that is to say, he equates the brothers possession to that of his client and contends that now that the civil litigation has ended unfavourably to his oponent Azam Ali, the respondent must be restored to possession.But that is no. what the Firman says. The respondents rights, if any, at the date of the Constitution, and now, are that he must establish his right to possession in a civil Court before he can ask to be put in possession. There is no. decision of a civil Court declaring the respondents right to possession, therefore, on that short ground he cannot get the writ he seeks.
### Response:
1
### Explanation:
6. We do not intend to say anything about the facts of title and possession lest it prejudice further litigation, should there be any. We will assume, without deciding, that all that the respondent says about his hereditary rights and his possession is true. But whether he was in possession or not whatever rights to possession he may have had were held in abeyance by the Firman ofand there is no. subsequent order of the Civil Courts removing the bar.Therefore, as he has no. present right to possession, no. mandamus can be issued. We do not mean to imply that writ would be the appropriate remedy if and when the respondent can establish a right to possession : that is a question that does not arise because in fact he has no. present right toare clear that the Constitution effected no.even if we accept all the respondents facts, the position would still be that at the date the Constitution came into force he had no. right to immediate possession; the utmost he had was right to be restored to possession if and when he established his rights in a Court a law.13. The High Court has relied on a decision of this Court inAmeerunnissa Begum v. Mahboob Begum, AIR 1953 SC 91 (B), and has held that the Firmans of the Nazim that conflict with the Constitution are ultra vires. But the learned Judges have failed to observe that in that case the Firman was issued after the Constitution and not before. But it was argued that even if that decision does not apply there are others that do and they hold that a law which would have been bad if it had been passed after the Constitution ceases to have effect after that date.The decisions referred to were considered inSyed Qasim Razi v. State of Hyderabad, AIR 1953 SC 156 (C) and the law laid down by the majority was this (page 161)."The effect of Art. 13(1) of the Constitution is not to obliterate the entire operation of the inconsistent laws of to wipe them out altogether from the statute book; for to do so will be to give them retrospective effect which they do not possess. Such laws must be held to be valid for all past transactions and for enforcing rights and liabilities accrued before the advern of the Constitution."That, in our opinion concludes thethat is no. what the Firman says. The respondents rights, if any, at the date of the Constitution, and now, are that he must establish his right to possession in a civil Court before he can ask to be put in possession. There is no. decision of a civil Court declaring the respondents right to possession, therefore, on that short ground he cannot get the writ he seeks.
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Lakshmi Rattan Engineering Works Vs. Regional Provident Fund Commissioner, Punjab, and Others | contention of the appellant that the date of establishment in its case should be taken as 23 May, 1955 when it acquired the factory from the Government has therefore no force.Then it is urged that in any case the appellant merely acquired the machinery and premises of the factory and re-started the factory after its acquisition and did not take over a running factory from the Government of India. We are of opinion that this contention also has no force. It is clear from Cl. (ix) of the agreement between the appellant and the Government of India that the appellant had taken over a running factory. Clause (ix) provides that - "the purchaser agrees to take over and to employ all the 168 workers at present working in the said factory whose names and other particulars are mentioned in Sch. 4 annexed hereto on the wages specified therein with effect from the date on which the possession of the said factory is handed over to the purchaser." 5. This clause clearly means that the appellant took over a running factory and therefore there was mere change of ownership in May 1955 and so the date of establishment must remain the date of its first establishment in 1952. In the circumstances, the appellant cannot claim that the date of the first establishment of the factory in this case should be taken to be 23 May, 1955 and three years exemption should count from that date. 6. Then it is urged that after the taking over of the factory, the appellant charged the line of business from the manufacture of diesel engines to the manufacture of parts of textile machinery. That, in our opinion, makes no difference for a mere change in the line of business would not make any difference to the date of first establishment where a running factory is taken over. Civil Appeal No. 572 must therefore fail. 7. Turning now to the facts of Civil Appeal No. 573, it appears that the Indian Co-operative Union, Ltd., started a training centre for the benefit of displaced persons from Pakistan and in that connexion started a textile unit for imparting knowledge in the art of weaving cloth, etc., to displaced persons in 1951. This centre was taken over by the Government of India, Ministry of Rehabilitation, in March 1953 and came to be known as technical unit. In January, 1955, the appellant purchased the technical unit from the Government of India and took possession thereof. However, the deed of conveyance was executed on 5 January, 1957 by the President of India in favour of the appellant. On 27 July, 1956 the Commissioner wrote to the appellant that it was governed by the Act and required it to deposit sums due on account of contributions and administrative charges and submit the necessary returns. The appellant contended that it had taken over the factory from the Government of India in January, 1955 and was thus entitled to three years exemption from that date. The dispute between the appellant and the Commissioner was the same as in the other appeal, namely, whether the factory should be deemed to be established in 1951 when it was first established by the Indian Co-operative Union, Ltd., or in 1955 when it was taken over by the appellant. In consequence of this dispute, the appellant filed a writ petition before the Punjab High Court in November 1957. It raised a number of points in the writ petition but in the present appeal we are concerned only with on question, namely, whether under S. 16(1)(b) of the Act the appellant is entitled to claim that the factory should be deemed to have been first established when it was taken over in January, 1955. The writ petition met the same fate as in Civil Appeal No. 572 and also the appeal before the Division Bench. Thereupon a certificate to appeal to this Court having been granted by the High Court, the matter has come up before us.We are of opinion that there is no force in this appeal either. We have already held in Civil Appeal No. 572 that mere change of ownership so long as the factory is working all the time makes no difference to the date of establishment of the factory. So in this case also the establishment of the factory must be taken to be in 1951 and not January, 1955 when the appellant acquired it. There is no substance in the appellants contention that it did not acquire a running factory, for the agreement between the President of India and the appellant shows that the appellant had undertaken. "to make every possible effort to see that the workers employed on the transfer of the said factory remain continuously employed in the factory." 8. It clearly shows that the factory was working continuously up to the date when the appellant took over and there was mere change of ownership in January, 1955. Therefore, the date of establishment must remain the same, namely, 1951. 9. Then it is urged that this was a mere training unit and not a factory at all and stress it placed on the name given to it, namely, technical unit, and on the fact that training was imparted to persons employed in the factory. That, in our opinion, makes no difference. The name certainly was technical unit; but there is no doubt that this was a factory producing textile goods, though at the same time it was being used as a training centre for displaced persons. It was nonetheless a factory producing textile goods in which a number of workmen were employed. The appellant undertook to continue to employ the workmen as far as possible and cannot take advantage of the name of the factory as it was before the appellant acquired it and also of the fact that it was also used for purposed of training. We are, therefore, of opinion that there is no force in this appeal either. | 0[ds]3. We are of opinion that there is no force in this contention. The words of S. 16(1)(b) are quite clear and leave no room for doubt that the period of three years should count from the date on which the establishment was first established and the fact that there has been a change in the ownership makes no difference to the counting of this period of three years so long as the establishment has continued to work all along4. Thus even if there is a change in the location of an establishment, that would not affect the date from which the establishment began, provided there was continuity of working. If that is so, with respect to the change of location there can be no doubt that a mere change of ownership would make no difference to the date of establishment of the establishment so long as there was continuity of working. The contention of the appellant that the date of establishment in its case should be taken as 23 May, 1955 when it acquired the factory from the Government has therefore no forceWe are of opinion that this contention also has no force. It is clear from Cl. (ix) of the agreement between the appellant and the Government of India that the appellant had taken over a running factory5. This clause clearly means that the appellant took over a running factory and therefore there was mere change of ownership in May 1955 and so the date of establishment must remain the date of its first establishment in 1952. In the circumstances, the appellant cannot claim that the date of the first establishment of the factory in this case should be taken to be 23 May, 1955 and three years exemption should count from that dateThat, in our opinion, makes no difference for a mere change in the line of business would not make any difference to the date of first establishment where a running factory is taken over. Civil Appeal No. 572 must therefore failWe are of opinion that there is no force in this appeal either. We have already held in Civil Appeal No. 572 that mere change of ownership so long as the factory is working all the time makes no difference to the date of establishment of the factory. So in this case also the establishment of the factory must be taken to be in 1951 and not January, 1955 when the appellant acquired it. There is no substance in the appellants contention that it did not acquire a running factory, for the agreement between the President of India and the appellant shows that the appellant had undertaken"to make every possible effort to see that the workers employed on the transfer of the said factory remain continuously employed in the factory."8. It clearly shows that the factory was working continuously up to the date when the appellant took over and there was mere change of ownership in January, 1955. Therefore, the date of establishment must remain the same, namely, 1951That, in our opinion, makes no difference. The name certainly was technical unit; but there is no doubt that this was a factory producing textile goods, though at the same time it was being used as a training centre for displaced persons. It was nonetheless a factory producing textile goods in which a number of workmen were employed. The appellant undertook to continue to employ the workmen as far as possible and cannot take advantage of the name of the factory as it was before the appellant acquired it and also of the fact that it was also used for purposed of training. We are, therefore, of opinion that there is no force in this appeal either. | 0 | 1,980 | 680 | ### 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:
contention of the appellant that the date of establishment in its case should be taken as 23 May, 1955 when it acquired the factory from the Government has therefore no force.Then it is urged that in any case the appellant merely acquired the machinery and premises of the factory and re-started the factory after its acquisition and did not take over a running factory from the Government of India. We are of opinion that this contention also has no force. It is clear from Cl. (ix) of the agreement between the appellant and the Government of India that the appellant had taken over a running factory. Clause (ix) provides that - "the purchaser agrees to take over and to employ all the 168 workers at present working in the said factory whose names and other particulars are mentioned in Sch. 4 annexed hereto on the wages specified therein with effect from the date on which the possession of the said factory is handed over to the purchaser." 5. This clause clearly means that the appellant took over a running factory and therefore there was mere change of ownership in May 1955 and so the date of establishment must remain the date of its first establishment in 1952. In the circumstances, the appellant cannot claim that the date of the first establishment of the factory in this case should be taken to be 23 May, 1955 and three years exemption should count from that date. 6. Then it is urged that after the taking over of the factory, the appellant charged the line of business from the manufacture of diesel engines to the manufacture of parts of textile machinery. That, in our opinion, makes no difference for a mere change in the line of business would not make any difference to the date of first establishment where a running factory is taken over. Civil Appeal No. 572 must therefore fail. 7. Turning now to the facts of Civil Appeal No. 573, it appears that the Indian Co-operative Union, Ltd., started a training centre for the benefit of displaced persons from Pakistan and in that connexion started a textile unit for imparting knowledge in the art of weaving cloth, etc., to displaced persons in 1951. This centre was taken over by the Government of India, Ministry of Rehabilitation, in March 1953 and came to be known as technical unit. In January, 1955, the appellant purchased the technical unit from the Government of India and took possession thereof. However, the deed of conveyance was executed on 5 January, 1957 by the President of India in favour of the appellant. On 27 July, 1956 the Commissioner wrote to the appellant that it was governed by the Act and required it to deposit sums due on account of contributions and administrative charges and submit the necessary returns. The appellant contended that it had taken over the factory from the Government of India in January, 1955 and was thus entitled to three years exemption from that date. The dispute between the appellant and the Commissioner was the same as in the other appeal, namely, whether the factory should be deemed to be established in 1951 when it was first established by the Indian Co-operative Union, Ltd., or in 1955 when it was taken over by the appellant. In consequence of this dispute, the appellant filed a writ petition before the Punjab High Court in November 1957. It raised a number of points in the writ petition but in the present appeal we are concerned only with on question, namely, whether under S. 16(1)(b) of the Act the appellant is entitled to claim that the factory should be deemed to have been first established when it was taken over in January, 1955. The writ petition met the same fate as in Civil Appeal No. 572 and also the appeal before the Division Bench. Thereupon a certificate to appeal to this Court having been granted by the High Court, the matter has come up before us.We are of opinion that there is no force in this appeal either. We have already held in Civil Appeal No. 572 that mere change of ownership so long as the factory is working all the time makes no difference to the date of establishment of the factory. So in this case also the establishment of the factory must be taken to be in 1951 and not January, 1955 when the appellant acquired it. There is no substance in the appellants contention that it did not acquire a running factory, for the agreement between the President of India and the appellant shows that the appellant had undertaken. "to make every possible effort to see that the workers employed on the transfer of the said factory remain continuously employed in the factory." 8. It clearly shows that the factory was working continuously up to the date when the appellant took over and there was mere change of ownership in January, 1955. Therefore, the date of establishment must remain the same, namely, 1951. 9. Then it is urged that this was a mere training unit and not a factory at all and stress it placed on the name given to it, namely, technical unit, and on the fact that training was imparted to persons employed in the factory. That, in our opinion, makes no difference. The name certainly was technical unit; but there is no doubt that this was a factory producing textile goods, though at the same time it was being used as a training centre for displaced persons. It was nonetheless a factory producing textile goods in which a number of workmen were employed. The appellant undertook to continue to employ the workmen as far as possible and cannot take advantage of the name of the factory as it was before the appellant acquired it and also of the fact that it was also used for purposed of training. We are, therefore, of opinion that there is no force in this appeal either.
### Response:
0
### Explanation:
3. We are of opinion that there is no force in this contention. The words of S. 16(1)(b) are quite clear and leave no room for doubt that the period of three years should count from the date on which the establishment was first established and the fact that there has been a change in the ownership makes no difference to the counting of this period of three years so long as the establishment has continued to work all along4. Thus even if there is a change in the location of an establishment, that would not affect the date from which the establishment began, provided there was continuity of working. If that is so, with respect to the change of location there can be no doubt that a mere change of ownership would make no difference to the date of establishment of the establishment so long as there was continuity of working. The contention of the appellant that the date of establishment in its case should be taken as 23 May, 1955 when it acquired the factory from the Government has therefore no forceWe are of opinion that this contention also has no force. It is clear from Cl. (ix) of the agreement between the appellant and the Government of India that the appellant had taken over a running factory5. This clause clearly means that the appellant took over a running factory and therefore there was mere change of ownership in May 1955 and so the date of establishment must remain the date of its first establishment in 1952. In the circumstances, the appellant cannot claim that the date of the first establishment of the factory in this case should be taken to be 23 May, 1955 and three years exemption should count from that dateThat, in our opinion, makes no difference for a mere change in the line of business would not make any difference to the date of first establishment where a running factory is taken over. Civil Appeal No. 572 must therefore failWe are of opinion that there is no force in this appeal either. We have already held in Civil Appeal No. 572 that mere change of ownership so long as the factory is working all the time makes no difference to the date of establishment of the factory. So in this case also the establishment of the factory must be taken to be in 1951 and not January, 1955 when the appellant acquired it. There is no substance in the appellants contention that it did not acquire a running factory, for the agreement between the President of India and the appellant shows that the appellant had undertaken"to make every possible effort to see that the workers employed on the transfer of the said factory remain continuously employed in the factory."8. It clearly shows that the factory was working continuously up to the date when the appellant took over and there was mere change of ownership in January, 1955. Therefore, the date of establishment must remain the same, namely, 1951That, in our opinion, makes no difference. The name certainly was technical unit; but there is no doubt that this was a factory producing textile goods, though at the same time it was being used as a training centre for displaced persons. It was nonetheless a factory producing textile goods in which a number of workmen were employed. The appellant undertook to continue to employ the workmen as far as possible and cannot take advantage of the name of the factory as it was before the appellant acquired it and also of the fact that it was also used for purposed of training. We are, therefore, of opinion that there is no force in this appeal either.
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Subhash Chandra Sen (D) thr. L.Rs. and Ors Vs. Nabin Sain (D) thr. L.Rs | S. Abdul Nazeer, J.1. Nabin Sain alias Nabin Chandra Sen filed a suit against Subhash Chandra Sen and Ors. for partition of his 3/5th share in the suit Schedule property. On 06.08.2001, trial court passed a decree granting the Plaintiff 3/5th share in the suit Schedule property on the following terms:This suit coming on this day for final disposal before Sri R.D. Kundu, Ld. Judge, Bench VIII in the presence of Sri J.M. Saha, Advocate for the Plaintiff, and of Sri Debrata Sen, Advocate for the Defendant. It is ordered and decreed that the suit be and the same is decreed on contest but without any costs. It is decreed that the Plaintiff do get a decree for partition holding that he has got 3/5th share in the suit property and the Defendants have got 2/5th share therein. It is further ordered that lot A property as shown in the sketch map filed by the Plaintiff be allotted to the Plaintiff and the lot B property be allotted to the Defendants. 4 ft. common passage to the east of the Lot A property would be kept open and the parties be permitted to raise boundary wall, the costs of which would be borne by the parties in equal share. Both the Plaintiff and the Defendants be allotted one tamp each for getting supply of Municipal Water. The sewage system and water supply system of the lot B property do pass through 4 ft. common passage and both the parties shall bear their respective costs for making arrangement of sewage system, pipe line system for supply of Municipal water. It is further ordered that if a door is fixed on the southern end of the common passage both parties would be at liberty to have keys for the said lock that may be used for closing the door and keeping the same in safe position.2. The appeal filed by the Plaintiff challenging this decree was dismissed by the High Court on 05.11.2003. The Defendant filed an application before the trial court in the said case for amendment of the decree directing the sketch map submitted by the Plaintiff on 06.02.2001 to be marked as an exhibit and part of the judgment and decree by effecting necessary corrections, in order to make the decree executable. The trial court by order dated 06.09.2006 allowed the said application as under:Ordered that the petition dated 18.08.2006 filed by the Defendants is hereby allowed on consent but without cost. Let the sketch map submitted by the Plaintiff alongwith his petition dated 06.02.2001 be made part of the judgment and decree. Judgment and decree be amended accordingly.3. The Plaintiff challenged the said order before the High Court of Calcutta. The High Court by its order dated 05.02.2008 has allowed the revision and set aside the order dated 06.09.2006 of the trial court. During the pendency of these proceedings, both the Plaintiff and the 1st Defendant died and their LRs have been brought on record at different stages. The LRs of the 1st Defendant and other Defendants have filed this appeal challenging the order of the High Court.4. Learned Counsel for the Appellants submits that the Appellants/defendants filed an application on 06.02.2001 praying that the suit may be partitioned in terms of the plan annexed to the application. However, by oversight the said plan was not exhibited. The plan demarcates the common area. The court had passed a decree by consent. Since the plan was not exhibited, difficulties arose for execution of the partition decree. Therefore, the court below has rightly allowed the application. The High Court on certain assumptions has set aside the said order. Learned Senior Counsel appearing for the Respondents submits that three sketch maps have been produced at different stages in the suit. Therefore, the High Court has rightly directed the parties to file a joint petition indicating their intention regarding allotment of their property as per their shares by producing a sketch duly drawn by competent person. This order of the High Court does not call for interference.5. We have carefully considered the submissions of the learned Counsel appearing for the parties. There is no dispute as to the share allotted by the trial court in favour of the parties. The Plaintiff was allotted 3/5th share and the Defendant was allotted 2/5th share in the suit Schedule property. It is clear that the sketch map relied on by the trial court was produced by the Plaintiff showing the frontal A lot property containing his 3/5th share delineated with yellow border and B lot property showing Defendants 2/5th share delineated with red border. The application filed by the Plaintiff producing the aforesaid map reads as under:Most Respectfully Sheweth:1. That the Plaintiff, as per direction of the Court is submitting a settlement Plan alongwith copy in Court this day marking annexure A to the petition and 2/5th share with red border with a statement.In the circumstances, it is prayed that on the basis of the said settlement plan, partition of the suit property may be made by the learned Court for ends of justice.And for this, your Petitioner as in duty bound shall ever pray.Dated: 06.02.2001Sd/-Plaintiff6. It is clear that the Plaintiff had also produced two other maps on 20.2.2001 and 12.6.2001. The Plaintiff had sought partition of the suit property in terms of the plan produced on 6.2.2001 which is evident from the application referred to above. As such, the Plaintiff cannot be permitted to say that the map produced with the application dated 6.2.2001 was not the map filed by him. It is not possible to give effect to the partition decree without a sketch map of the suit Schedule property. At the time of passing the judgment and decree, the trial court should have made the said map as a part of the decree so that the partition could have been effected as per the said sketch. No party should be allowed to suffer for the error of the court. | 1[ds]5. We have carefully considered the submissions of the learned Counsel appearing for the parties. There is no dispute as to the share allotted by the trial court in favour of the parties. The Plaintiff was allotted 3/5th share and the Defendant was allotted 2/5th share in the suit Schedule property. It is clear that the sketch map relied on by the trial court was produced by the Plaintiff showing the frontal A lot property containing his 3/5th share delineated with yellow border and B lot property showing Defendants 2/5th share delineated with red border6. It is clear that the Plaintiff had also produced two other maps on 20.2.2001 and 12.6.2001. The Plaintiff had sought partition of the suit property in terms of the plan produced on 6.2.2001 which is evident from the application referred to above. As such, the Plaintiff cannot be permitted to say that the map produced with the application dated 6.2.2001 was not the map filed by him. It is not possible to give effect to the partition decree without a sketch map of the suit Schedule property. At the time of passing the judgment and decree, the trial court should have made the said map as a part of the decree so that the partition could have been effected as per the said sketch. No party should be allowed to suffer for the error of the court. | 1 | 1,072 | 250 | ### 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:
S. Abdul Nazeer, J.1. Nabin Sain alias Nabin Chandra Sen filed a suit against Subhash Chandra Sen and Ors. for partition of his 3/5th share in the suit Schedule property. On 06.08.2001, trial court passed a decree granting the Plaintiff 3/5th share in the suit Schedule property on the following terms:This suit coming on this day for final disposal before Sri R.D. Kundu, Ld. Judge, Bench VIII in the presence of Sri J.M. Saha, Advocate for the Plaintiff, and of Sri Debrata Sen, Advocate for the Defendant. It is ordered and decreed that the suit be and the same is decreed on contest but without any costs. It is decreed that the Plaintiff do get a decree for partition holding that he has got 3/5th share in the suit property and the Defendants have got 2/5th share therein. It is further ordered that lot A property as shown in the sketch map filed by the Plaintiff be allotted to the Plaintiff and the lot B property be allotted to the Defendants. 4 ft. common passage to the east of the Lot A property would be kept open and the parties be permitted to raise boundary wall, the costs of which would be borne by the parties in equal share. Both the Plaintiff and the Defendants be allotted one tamp each for getting supply of Municipal Water. The sewage system and water supply system of the lot B property do pass through 4 ft. common passage and both the parties shall bear their respective costs for making arrangement of sewage system, pipe line system for supply of Municipal water. It is further ordered that if a door is fixed on the southern end of the common passage both parties would be at liberty to have keys for the said lock that may be used for closing the door and keeping the same in safe position.2. The appeal filed by the Plaintiff challenging this decree was dismissed by the High Court on 05.11.2003. The Defendant filed an application before the trial court in the said case for amendment of the decree directing the sketch map submitted by the Plaintiff on 06.02.2001 to be marked as an exhibit and part of the judgment and decree by effecting necessary corrections, in order to make the decree executable. The trial court by order dated 06.09.2006 allowed the said application as under:Ordered that the petition dated 18.08.2006 filed by the Defendants is hereby allowed on consent but without cost. Let the sketch map submitted by the Plaintiff alongwith his petition dated 06.02.2001 be made part of the judgment and decree. Judgment and decree be amended accordingly.3. The Plaintiff challenged the said order before the High Court of Calcutta. The High Court by its order dated 05.02.2008 has allowed the revision and set aside the order dated 06.09.2006 of the trial court. During the pendency of these proceedings, both the Plaintiff and the 1st Defendant died and their LRs have been brought on record at different stages. The LRs of the 1st Defendant and other Defendants have filed this appeal challenging the order of the High Court.4. Learned Counsel for the Appellants submits that the Appellants/defendants filed an application on 06.02.2001 praying that the suit may be partitioned in terms of the plan annexed to the application. However, by oversight the said plan was not exhibited. The plan demarcates the common area. The court had passed a decree by consent. Since the plan was not exhibited, difficulties arose for execution of the partition decree. Therefore, the court below has rightly allowed the application. The High Court on certain assumptions has set aside the said order. Learned Senior Counsel appearing for the Respondents submits that three sketch maps have been produced at different stages in the suit. Therefore, the High Court has rightly directed the parties to file a joint petition indicating their intention regarding allotment of their property as per their shares by producing a sketch duly drawn by competent person. This order of the High Court does not call for interference.5. We have carefully considered the submissions of the learned Counsel appearing for the parties. There is no dispute as to the share allotted by the trial court in favour of the parties. The Plaintiff was allotted 3/5th share and the Defendant was allotted 2/5th share in the suit Schedule property. It is clear that the sketch map relied on by the trial court was produced by the Plaintiff showing the frontal A lot property containing his 3/5th share delineated with yellow border and B lot property showing Defendants 2/5th share delineated with red border. The application filed by the Plaintiff producing the aforesaid map reads as under:Most Respectfully Sheweth:1. That the Plaintiff, as per direction of the Court is submitting a settlement Plan alongwith copy in Court this day marking annexure A to the petition and 2/5th share with red border with a statement.In the circumstances, it is prayed that on the basis of the said settlement plan, partition of the suit property may be made by the learned Court for ends of justice.And for this, your Petitioner as in duty bound shall ever pray.Dated: 06.02.2001Sd/-Plaintiff6. It is clear that the Plaintiff had also produced two other maps on 20.2.2001 and 12.6.2001. The Plaintiff had sought partition of the suit property in terms of the plan produced on 6.2.2001 which is evident from the application referred to above. As such, the Plaintiff cannot be permitted to say that the map produced with the application dated 6.2.2001 was not the map filed by him. It is not possible to give effect to the partition decree without a sketch map of the suit Schedule property. At the time of passing the judgment and decree, the trial court should have made the said map as a part of the decree so that the partition could have been effected as per the said sketch. No party should be allowed to suffer for the error of the court.
### Response:
1
### Explanation:
5. We have carefully considered the submissions of the learned Counsel appearing for the parties. There is no dispute as to the share allotted by the trial court in favour of the parties. The Plaintiff was allotted 3/5th share and the Defendant was allotted 2/5th share in the suit Schedule property. It is clear that the sketch map relied on by the trial court was produced by the Plaintiff showing the frontal A lot property containing his 3/5th share delineated with yellow border and B lot property showing Defendants 2/5th share delineated with red border6. It is clear that the Plaintiff had also produced two other maps on 20.2.2001 and 12.6.2001. The Plaintiff had sought partition of the suit property in terms of the plan produced on 6.2.2001 which is evident from the application referred to above. As such, the Plaintiff cannot be permitted to say that the map produced with the application dated 6.2.2001 was not the map filed by him. It is not possible to give effect to the partition decree without a sketch map of the suit Schedule property. At the time of passing the judgment and decree, the trial court should have made the said map as a part of the decree so that the partition could have been effected as per the said sketch. No party should be allowed to suffer for the error of the court.
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THE STATE OF ANDHRA PRADESH Vs. M/S LINDE INDIA LTD. (FORMERLY BOC INDIA LTD) | meted out to them. 27. In Panki Oxygen v State of Uttar Pradesh, 2014 SCC Online All 2144 the question before the High Court of Allahabad was whether tax on Oxygen IP under the Uttar Pradesh Trade Tax Act was to be levied under the Entry Medicine and Pharmaceutical Preparation or under the Entry Oxygen and other gases. Justice Ashok Bhushan (sitting as a judge of that High Court) relied on the above decisions of various High Courts and held thus: In view of the above, we are of the view that oxygen (IP) is fully covered by Entry 26 of the notification dated 15.1.2000 i.e. medicines and pharmaceutical preparation and shall not be covered by Entry 47 of the notification dated 29.1.2001 which relates to oxygen and other gases. The oxygen (IP) i.e. medicinal oxygen being a drug fully covered by Entry 26 of the notification dated 15.1.2000 cannot be included in the general entry i.e. Entry 47 of the notification dated 29.1.2001. 28. In Inox Air, the question before the High Court of Andhra Pradesh was whether Liquid Medical Oxygen IP, Medical Grade Oxygen and Nitrous Oxide IP are liable to be taxed under Entry 88 of the 2005 Act. The High Court held: As medical oxygen LP and nitrous oxide LP are used in the treatment and mitigation of disorders in human beings, and as they are generally understood in the trade to be surgical aids, both these substances would fall under the definition of drug under Section 3(b)(1) of the Drugs Act, and consequently, fall under Entry 88 of Schedule IV of the Act. Viewed from any angle, both medical oxygen IP and Nitrous Oxide IP fall under Entry 88 of Schedule IV and are liable to tax only at 4%/5% and not at12.5% or 14.5%. The High Court held that medical oxygen is used in the treatment and mitigation of disorders in human beings, and are generally understood in trade to be surgical aids. 29. The above judgments highlight the curative and instrumental use of Medical Oxygen IP and Nitrous Oxide IP in the mitigation and prevention of disease or disorder. Nitrous Oxide is used as anesthetic agent. Medical oxygen with 99.9% purity is predominantly used in hospitals. Medical Oxygen is also used for the treatment of patients and to mitigate the intensity of disease or disorder in human beings. It is utilised to prevent a sudden collapse of patients and to aid in the recovery of health. As stated in the Counter Affidavit filed by the respondents, in order to carry out critical surgical procedures, supplemental oxygen is administered to patients. Medical Oxygen is also administered in resuscitation, major trauma, anaphylaxis, major hemorrhage, shock and active convulsions, amongst other conditions. 30. Nitrous Oxide is used in surgery and dentistry for its anesthetic and analgesic effects. An article published in the British Medical Bulletin titled Past, Present and Future of Nitrous Oxide (V Lew, E McKay, M Maze, Past, present, and future of nitrous oxide, British Medical Bulletin, Volume 125, Issue 1, March 2018, Pages 103–119. ) highlights the medical use of Nitrous Oxide in the following terms: As an anaesthetic gas, N 2 O has many unique properties that have historically been used to great benefit in the operating room. These include a high FA/FI ratio allowing for rapid onset and offset, anxiolytic as well as analgesic and amnestic properties, lack of an odour and lack of irritation to the tracheobronchial tree. These same properties have made it increasingly popular in areas outside of the OR including paediatric procedural sedation, the emergency room, obstetrics, and potentially psychiatry, for attenuation of treatment-resistant depression. The World Health Organisation in its publication titled Model Prescribing Information: Drugs Used in Anesthesia (WHO Model Prescribing Information: Drugs Used in Anaesthesia (1989). ) states that Nitrous Oxide has the following uses: Maintenance of surgical anaesthesia in combination with other anaesthetic agents (halothane, ether, thiopental or ketamine) and muscle relaxants. In subanaesthetic doses, to provide analgesia for obstetric practice, for emergency management of injuries, during postoperative physiotherapy and for refractory pain in terminal illness. K D Tripathi in Essentials of Medical Pharmacology (KD Tripathi, Essentials of Medical Pharmacology, VIIth Ed., at p. 378) states: INHALATIONAL ANAESTHETICS 1. Nitrous oxide (N2O) It is a colourless, odourless, heavier than air, noninflammable gas supplied under pressure in steel cylinders. It is nonirritating, but low potency anaesthetic; unconsciousness cannot be produced in all individuals without concomitant hypoxia; MAC is 105% implying that even pure N2O cannot produce adequate anaesthesia at 1 atmosphere pressure. Patients maintained on 70% N2O + 30% O2 along with muscle relaxants often recall the events during anaesthesia, but some lose awareness completely. Nitrous oxide is a good analgesic; even 20% produces analgesia equivalent to that produced by conventional doses of morphine. … 3. Nitrous oxide The patient is made to breathe 100% oxygen through a nose piece or hood and N2O is added in 10% increments (to a maximum of 50%, rarely 70%) till the desired level of sedation assessed by constant verbal contact is obtained. This is maintained till the procedure is performed. Thereafter, N2O is switched off, but 100% O2 is continued for next 5 min. The patient is generally roadworthy in 30–60 min. The above extracts demonstrate the medical use of Nitrous Oxide as a general anesthetic as well as in operation rooms for its analgesic and anxiolytic properties. 31. In the proceedings before this Court, it was not seriously disputed that Medical Oxygen IP and Nitrous Oxide IP sub-serve a medicinal purpose. There is no doubt that Medical Oxygen IP and Nitrous Oxide IP are medicines used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings falling within the ambit of Section 3(b)(i) of the 1940 Act. We hold that Medical Oxygen IP and Nitrous Oxide IP fall within the ambit of Section 3(b)(i) of the 1940 Act and are consequently covered in Entry 88 of the 2005 Act. | 0[ds]15. In the above view, Section 3(b)(i) stipulates that medicines or substances used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings, or animals shall be included within the ambit of the definition. It is significant to note the use of the phrase for or in in the definitional clause. Section 3(b)(i) includes both medicines or substances used for the diagnosis, treatment, mitigation or prevention of any disease or disorder or in the diagnosis, treatment, mitigation or prevention of any disease or disorder. Where the former highlights the direct use of the product in question in diagnosing, treating, mitigating or preventing a disease or disorder, the latter highlights its instrumental use as a facilitative agent in the diagnosis, treatment, mitigation or prevention of any disease or disorder. The relevant enquiry for this Court is whether Medical Oxygen IP and Nitrous Oxide IP are used in or for any of the purposes specified thereinThe question in the present case does not concern all variants of oxygen and nitrogen, but only Medical Oxygen IP and Nitrous Oxide IP21. Drugs specified in the Second Schedule are required under the 1940 Act to comply with specified standards. Entry 5 prescribes that other drugs means drugs included in the Indian Pharmacopeia, for which standards are specified therein. The Indian Pharmacopoeia Commission (IPC) is an autonomous institution of the Ministry of Health and Family Welfare, Government of India. The IPC, through its publication titled Indian Pharmacopoeia prescribes standards for the identity, purity and strength of the drugs specified therein. Medical oxygen (at 99.9% purity) is included as a drug termed as Oxygen IP. Section 16, read with the Second Schedule and the specification of Medical Oxygen in the Indian Pharmacopoeia lends support to the contention urged by the respondents that Medical Oxygen IP is a drug as defined in Section 3(b)(i) of the 1940 Act22. Furthermore, in exercise of the powers conferred by Section 3 of the Essential Commodities Act 1955, the Central Government issued the Drug (Prices Control) Order 2013 which came into force on the date of its publication in the Official Gazette (15 May 2013). Para 2(t) stipulates that the National List of Essential Medicines means the National List of Essential Medicines 2011 published by the Ministry of Health and Family Welfare as updated and revised from time to time. It also specifies that the National List of Essential Medicines 2011 is included in the First Schedule to the order. Para 2(2) stipulates that all other words and expressions used therein and not defined, but defined in the 1940 Act shall have meanings respectively assigned in the 1940 ActIn the exercise of the power conferred under the 2013 Order, the Government of India, by its order dated 20 December 2013 prescribed the selling price for both Nitrous Oxide Inhalation and Oxygen Inhalation. This was evidently done keeping in mind the regulation of the selling prices of essential medicines in the market. The inclusion of Oxygen and Nitrous Oxide as Anesthesia lends support to its use in the diagnosis and treatment of a disorder or disease as specified in Section 3(b)(1) of the 1940 Act29. The above judgments highlight the curative and instrumental use of Medical Oxygen IP and Nitrous Oxide IP in the mitigation and prevention of disease or disorder. Nitrous Oxide is used as anesthetic agent. Medical oxygen with 99.9% purity is predominantly used in hospitals. Medical Oxygen is also used for the treatment of patients and to mitigate the intensity of disease or disorder in human beings. It is utilised to prevent a sudden collapse of patients and to aid in the recovery of health. As stated in the Counter Affidavit filed by the respondents, in order to carry out critical surgical procedures, supplemental oxygen is administered to patients. Medical Oxygen is also administered in resuscitation, major trauma, anaphylaxis, major hemorrhage, shock and active convulsions, amongst other conditions30. Nitrous Oxide is used in surgery and dentistry for its anesthetic and analgesic effects. An article published in the British Medical Bulletin titled Past, Present and Future of Nitrous Oxide (V Lew, E McKay, M Maze, Past, present, and future of nitrous oxide, British Medical Bulletin, Volume 125, Issue 1, March 2018, Pages 103–119. ) highlights the medical use of Nitrous Oxide in the following terms:As an anaesthetic gas, N 2 O has many unique properties that have historically been used to great benefit in the operating room. These include a high FA/FI ratio allowing for rapid onset and offset, anxiolytic as well as analgesic and amnestic properties, lack of an odour and lack of irritation to the tracheobronchial tree. These same properties have made it increasingly popular in areas outside of the OR including paediatric procedural sedation, the emergency room, obstetrics, and potentially psychiatry, for attenuation of treatment-resistant depressionThe World Health Organisation in its publication titled Model Prescribing Information: Drugs Used in Anesthesia (WHO Model Prescribing Information: Drugs Used in Anaesthesia (1989). ) states that Nitrous Oxide has the following uses:Maintenance of surgical anaesthesia in combination with other anaesthetic agents (halothane, ether, thiopental or ketamine) and muscle relaxantsIn subanaesthetic doses, to provide analgesia for obstetric practice, for emergency management of injuries, during postoperative physiotherapy and for refractory pain in terminal illnessK D Tripathi in Essentials of Medical Pharmacology (KD Tripathi, Essentials of Medical Pharmacology, VIIth Ed., at p. 378) states:3. Nitrous oxide The patient is made to breathe 100% oxygen through a nose piece or hood and N2O is added in 10% increments (to a maximum of 50%, rarely 70%) till the desired level of sedation assessed by constant verbal contact is obtained. This is maintained till the procedure is performed. Thereafter, N2O is switched off, but 100% O2 is continued for next 5 min. The patient is generally roadworthy in 30–60 minThe above extracts demonstrate the medical use of Nitrous Oxide as a general anesthetic as well as in operation rooms for its analgesic and anxiolytic properties31. In the proceedings before this Court, it was not seriously disputed that Medical Oxygen IP and Nitrous Oxide IP sub-serve a medicinal purpose. There is no doubt that Medical Oxygen IP and Nitrous Oxide IP are medicines used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings falling within the ambit of Section 3(b)(i) of the 1940 Act. We hold that Medical Oxygen IP and Nitrous Oxide IP fall within the ambit of Section 3(b)(i) of the 1940 Act and are consequently covered in Entry 88 of the 2005 Act. | 0 | 6,593 | 1,270 | ### 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:
meted out to them. 27. In Panki Oxygen v State of Uttar Pradesh, 2014 SCC Online All 2144 the question before the High Court of Allahabad was whether tax on Oxygen IP under the Uttar Pradesh Trade Tax Act was to be levied under the Entry Medicine and Pharmaceutical Preparation or under the Entry Oxygen and other gases. Justice Ashok Bhushan (sitting as a judge of that High Court) relied on the above decisions of various High Courts and held thus: In view of the above, we are of the view that oxygen (IP) is fully covered by Entry 26 of the notification dated 15.1.2000 i.e. medicines and pharmaceutical preparation and shall not be covered by Entry 47 of the notification dated 29.1.2001 which relates to oxygen and other gases. The oxygen (IP) i.e. medicinal oxygen being a drug fully covered by Entry 26 of the notification dated 15.1.2000 cannot be included in the general entry i.e. Entry 47 of the notification dated 29.1.2001. 28. In Inox Air, the question before the High Court of Andhra Pradesh was whether Liquid Medical Oxygen IP, Medical Grade Oxygen and Nitrous Oxide IP are liable to be taxed under Entry 88 of the 2005 Act. The High Court held: As medical oxygen LP and nitrous oxide LP are used in the treatment and mitigation of disorders in human beings, and as they are generally understood in the trade to be surgical aids, both these substances would fall under the definition of drug under Section 3(b)(1) of the Drugs Act, and consequently, fall under Entry 88 of Schedule IV of the Act. Viewed from any angle, both medical oxygen IP and Nitrous Oxide IP fall under Entry 88 of Schedule IV and are liable to tax only at 4%/5% and not at12.5% or 14.5%. The High Court held that medical oxygen is used in the treatment and mitigation of disorders in human beings, and are generally understood in trade to be surgical aids. 29. The above judgments highlight the curative and instrumental use of Medical Oxygen IP and Nitrous Oxide IP in the mitigation and prevention of disease or disorder. Nitrous Oxide is used as anesthetic agent. Medical oxygen with 99.9% purity is predominantly used in hospitals. Medical Oxygen is also used for the treatment of patients and to mitigate the intensity of disease or disorder in human beings. It is utilised to prevent a sudden collapse of patients and to aid in the recovery of health. As stated in the Counter Affidavit filed by the respondents, in order to carry out critical surgical procedures, supplemental oxygen is administered to patients. Medical Oxygen is also administered in resuscitation, major trauma, anaphylaxis, major hemorrhage, shock and active convulsions, amongst other conditions. 30. Nitrous Oxide is used in surgery and dentistry for its anesthetic and analgesic effects. An article published in the British Medical Bulletin titled Past, Present and Future of Nitrous Oxide (V Lew, E McKay, M Maze, Past, present, and future of nitrous oxide, British Medical Bulletin, Volume 125, Issue 1, March 2018, Pages 103–119. ) highlights the medical use of Nitrous Oxide in the following terms: As an anaesthetic gas, N 2 O has many unique properties that have historically been used to great benefit in the operating room. These include a high FA/FI ratio allowing for rapid onset and offset, anxiolytic as well as analgesic and amnestic properties, lack of an odour and lack of irritation to the tracheobronchial tree. These same properties have made it increasingly popular in areas outside of the OR including paediatric procedural sedation, the emergency room, obstetrics, and potentially psychiatry, for attenuation of treatment-resistant depression. The World Health Organisation in its publication titled Model Prescribing Information: Drugs Used in Anesthesia (WHO Model Prescribing Information: Drugs Used in Anaesthesia (1989). ) states that Nitrous Oxide has the following uses: Maintenance of surgical anaesthesia in combination with other anaesthetic agents (halothane, ether, thiopental or ketamine) and muscle relaxants. In subanaesthetic doses, to provide analgesia for obstetric practice, for emergency management of injuries, during postoperative physiotherapy and for refractory pain in terminal illness. K D Tripathi in Essentials of Medical Pharmacology (KD Tripathi, Essentials of Medical Pharmacology, VIIth Ed., at p. 378) states: INHALATIONAL ANAESTHETICS 1. Nitrous oxide (N2O) It is a colourless, odourless, heavier than air, noninflammable gas supplied under pressure in steel cylinders. It is nonirritating, but low potency anaesthetic; unconsciousness cannot be produced in all individuals without concomitant hypoxia; MAC is 105% implying that even pure N2O cannot produce adequate anaesthesia at 1 atmosphere pressure. Patients maintained on 70% N2O + 30% O2 along with muscle relaxants often recall the events during anaesthesia, but some lose awareness completely. Nitrous oxide is a good analgesic; even 20% produces analgesia equivalent to that produced by conventional doses of morphine. … 3. Nitrous oxide The patient is made to breathe 100% oxygen through a nose piece or hood and N2O is added in 10% increments (to a maximum of 50%, rarely 70%) till the desired level of sedation assessed by constant verbal contact is obtained. This is maintained till the procedure is performed. Thereafter, N2O is switched off, but 100% O2 is continued for next 5 min. The patient is generally roadworthy in 30–60 min. The above extracts demonstrate the medical use of Nitrous Oxide as a general anesthetic as well as in operation rooms for its analgesic and anxiolytic properties. 31. In the proceedings before this Court, it was not seriously disputed that Medical Oxygen IP and Nitrous Oxide IP sub-serve a medicinal purpose. There is no doubt that Medical Oxygen IP and Nitrous Oxide IP are medicines used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings falling within the ambit of Section 3(b)(i) of the 1940 Act. We hold that Medical Oxygen IP and Nitrous Oxide IP fall within the ambit of Section 3(b)(i) of the 1940 Act and are consequently covered in Entry 88 of the 2005 Act.
### Response:
0
### Explanation:
the former highlights the direct use of the product in question in diagnosing, treating, mitigating or preventing a disease or disorder, the latter highlights its instrumental use as a facilitative agent in the diagnosis, treatment, mitigation or prevention of any disease or disorder. The relevant enquiry for this Court is whether Medical Oxygen IP and Nitrous Oxide IP are used in or for any of the purposes specified thereinThe question in the present case does not concern all variants of oxygen and nitrogen, but only Medical Oxygen IP and Nitrous Oxide IP21. Drugs specified in the Second Schedule are required under the 1940 Act to comply with specified standards. Entry 5 prescribes that other drugs means drugs included in the Indian Pharmacopeia, for which standards are specified therein. The Indian Pharmacopoeia Commission (IPC) is an autonomous institution of the Ministry of Health and Family Welfare, Government of India. The IPC, through its publication titled Indian Pharmacopoeia prescribes standards for the identity, purity and strength of the drugs specified therein. Medical oxygen (at 99.9% purity) is included as a drug termed as Oxygen IP. Section 16, read with the Second Schedule and the specification of Medical Oxygen in the Indian Pharmacopoeia lends support to the contention urged by the respondents that Medical Oxygen IP is a drug as defined in Section 3(b)(i) of the 1940 Act22. Furthermore, in exercise of the powers conferred by Section 3 of the Essential Commodities Act 1955, the Central Government issued the Drug (Prices Control) Order 2013 which came into force on the date of its publication in the Official Gazette (15 May 2013). Para 2(t) stipulates that the National List of Essential Medicines means the National List of Essential Medicines 2011 published by the Ministry of Health and Family Welfare as updated and revised from time to time. It also specifies that the National List of Essential Medicines 2011 is included in the First Schedule to the order. Para 2(2) stipulates that all other words and expressions used therein and not defined, but defined in the 1940 Act shall have meanings respectively assigned in the 1940 ActIn the exercise of the power conferred under the 2013 Order, the Government of India, by its order dated 20 December 2013 prescribed the selling price for both Nitrous Oxide Inhalation and Oxygen Inhalation. This was evidently done keeping in mind the regulation of the selling prices of essential medicines in the market. The inclusion of Oxygen and Nitrous Oxide as Anesthesia lends support to its use in the diagnosis and treatment of a disorder or disease as specified in Section 3(b)(1) of the 1940 Act29. The above judgments highlight the curative and instrumental use of Medical Oxygen IP and Nitrous Oxide IP in the mitigation and prevention of disease or disorder. Nitrous Oxide is used as anesthetic agent. Medical oxygen with 99.9% purity is predominantly used in hospitals. Medical Oxygen is also used for the treatment of patients and to mitigate the intensity of disease or disorder in human beings. It is utilised to prevent a sudden collapse of patients and to aid in the recovery of health. As stated in the Counter Affidavit filed by the respondents, in order to carry out critical surgical procedures, supplemental oxygen is administered to patients. Medical Oxygen is also administered in resuscitation, major trauma, anaphylaxis, major hemorrhage, shock and active convulsions, amongst other conditions30. Nitrous Oxide is used in surgery and dentistry for its anesthetic and analgesic effects. An article published in the British Medical Bulletin titled Past, Present and Future of Nitrous Oxide (V Lew, E McKay, M Maze, Past, present, and future of nitrous oxide, British Medical Bulletin, Volume 125, Issue 1, March 2018, Pages 103–119. ) highlights the medical use of Nitrous Oxide in the following terms:As an anaesthetic gas, N 2 O has many unique properties that have historically been used to great benefit in the operating room. These include a high FA/FI ratio allowing for rapid onset and offset, anxiolytic as well as analgesic and amnestic properties, lack of an odour and lack of irritation to the tracheobronchial tree. These same properties have made it increasingly popular in areas outside of the OR including paediatric procedural sedation, the emergency room, obstetrics, and potentially psychiatry, for attenuation of treatment-resistant depressionThe World Health Organisation in its publication titled Model Prescribing Information: Drugs Used in Anesthesia (WHO Model Prescribing Information: Drugs Used in Anaesthesia (1989). ) states that Nitrous Oxide has the following uses:Maintenance of surgical anaesthesia in combination with other anaesthetic agents (halothane, ether, thiopental or ketamine) and muscle relaxantsIn subanaesthetic doses, to provide analgesia for obstetric practice, for emergency management of injuries, during postoperative physiotherapy and for refractory pain in terminal illnessK D Tripathi in Essentials of Medical Pharmacology (KD Tripathi, Essentials of Medical Pharmacology, VIIth Ed., at p. 378) states:3. Nitrous oxide The patient is made to breathe 100% oxygen through a nose piece or hood and N2O is added in 10% increments (to a maximum of 50%, rarely 70%) till the desired level of sedation assessed by constant verbal contact is obtained. This is maintained till the procedure is performed. Thereafter, N2O is switched off, but 100% O2 is continued for next 5 min. The patient is generally roadworthy in 30–60 minThe above extracts demonstrate the medical use of Nitrous Oxide as a general anesthetic as well as in operation rooms for its analgesic and anxiolytic properties31. In the proceedings before this Court, it was not seriously disputed that Medical Oxygen IP and Nitrous Oxide IP sub-serve a medicinal purpose. There is no doubt that Medical Oxygen IP and Nitrous Oxide IP are medicines used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings falling within the ambit of Section 3(b)(i) of the 1940 Act. We hold that Medical Oxygen IP and Nitrous Oxide IP fall within the ambit of Section 3(b)(i) of the 1940 Act and are consequently covered in Entry 88 of the 2005 Act.
|
Commercial Taxes Officer Vs. A Infrastructure Ltd | Court posed the following question:- “7. The simple question before us is whether the Bench which decided Pine Chemicals is right in holding that the benefit of the said sub-section is available even where the goods are exempted with reference to industrial unit and for a specified period, viz., period of five years from the date the relevant unit goes into production. In other words, the question is whether an exemption of the nature granted under Government Order No. 159 dated 26-03-1971 is an exemption available “only in specified circumstances or under specified conditions” within the meaning of the Explanation to Section 8(2-A), as contended by the State or is it a case where the goods are exempt from the tax ‘generally’ within the meaning of Section 8(2-A), as contended by the respondents/dealers? We are of the opinion that the respondents/dealers’ contention cannot be accepted in view of the clear and unambiguous language of the sub-section.” 25. Thus, the Court drew a distinction between goods, generally exempt from tax after noticing that Section 8(2A) of the Central Sales Tax Act specifically uses the expression “exempt from tax generally or subject to tax generally at a rate which is lower than 4%”, and accordingly observed that when the goods are exempt under certain specified circumstances alone, the exemption is not a general, but a conditional one. In such circumstances, it cannot be said that the goods are exempt from tax generally for the exemption may vary from unit to unit and would depend upon date of commencement of production of each unit. Reference was made to earlier decision in Indian Aluminium Cables Limited v. State of Haryana (1976) 4 SCC 27 ), wherein it has been held that exemption from tax when conferred by conditions or in certain circumstances, there was no exemption from tax generally. 26. At this juncture, we are required to understand the effect of the principles spelt out in above decisions especially in K.N. Kandaswami and Others (supra) on the facts of the present case. There is no doubt that a distinction has to be drawn between exempted goods, which means complete exemption for the specified goods, and when the goods are taxable goods, but a transaction or a person is granted exemption. When the goods are exempt, there would be no taxable transactions or exemption to a taxable person. In other cases, goods might be taxable, but exemption could be given in respect of a taxable event, i.e., exemption to specified transactions from liability of tax or exemption to a taxable person, though the goods are taxable. Such exemptions operate in circumscribed boundaries and not as expansive as in the case of taxable goods. Exemptions with reference to taxable events or taxable persons would not exempt the goods as such, for a subsequent transaction or when the goods are sold or purchased by a non-specified person, the subsequent transaction or the taxable person would be liable to pay tax. It is, in this context, it has been highlighted by the respondent and, in our opinion, absolutely correctly that Section 4 of the Act provides for levy of tax in a situation where the goods, which were not exempted but could otherwise not be subjected to tax on account of exemption granted to a person or to a transaction. The goods remain taxable goods through exemption stands granted to a particular individual or a specified transaction. That being so, all subsequent transactions in those goods, which are not specifically exempt and not undertaken by an exempted person could be subjected to taxation. Therefore, the appellant though exempted from payment of tax, subsequent transactions of sale of asbestos cement sheets would be taxable. The transaction of sale by the manufacturer/dealer covered by the exemption notifications issued under Section 8(3) of the Act would be protected or an exempted transaction, but the goods not being exempted goods would be taxable and could be taxed on the happening of a taxable or charging event. It is simply because the goods are not exempt from tax or exempted goods, but are taxable. As a logical corollary it follows that the Value Added Tax would have to be paid on the taxable goods in a subsequent transaction by the purchasing dealer. 27. As a sequitur, we are obliged to observe that if the contention of the appellant is to be accepted, the respondent though covered by exemption notification under Section 8(3) of the Act could be at a disadvantage because finally when the subsequent sale is made by a non-exempted dealer or tax stands paid on the non-exempted transfer, the goods, i.e., asbestos cement sheet, would suffer the tax on the entire sale consideration. This would place an exempted manufacturer-dealer at a disadvantageous position and make his products uncompetitive inspite of the exemption notifications under Section 8(3) of the Act.28. In the context of the issue in question, the respondents have rightly highlighted that where the appellant wanted to restrict the benefit of ITC when a particular dealer or transaction was exempted, it was so stipulated in the exemption notification issued under Sections 8(3) and 8(4) of the Act. Such notifications admittedly do exist and were issued by the appellant. They are also right in drawing support from the note sheets relating to Finance Bill 2007 as also the communications issued by Commissioner of Commercial Taxes. The note sheets and the communication of the Commissioner draw a clear distinction between exemptions when the goods were not taxable as they do fall under the First Schedule and when an exemption was granted under the Second Schedule, which relates to specified transaction of sale or exempted dealers even when the goods were taxable goods. In latter cases, subsequent dealers undertaking sale of goods would be liable to pay tax on sale of such products. There can be no shadow of doubt that subsequent dealers undertaking sale of goods manufactured and sold by the respondent company would be liable to pay tax on such products. | 0[ds]20. On an analysis of the scheme of the Act, it is manifest that there is difference between exempted goods, i.e., goods on which no Value Added Tax is payable and are, therefore, not taxable and other cases where a particular transaction when it satisfies specific condition is not taxable. In this regard reference to the authority in State of Tamil Nadu v. M.K. Kandaswami & others (1975) 4 SCC 745 ), would be seemly, for this Court had adverted to three distinct concepts; taxable persons, taxable goods and taxable events and how they were distinguished. It was observed in the said case that if the said distinction is overlooked, it may lead to serious error in construction and application of a taxing provision or enactment. In the case of taxable or non-taxable/exempted goods, the focal point and the focus is on the character and class of goods in relation to their exigibility. Referring to the provisions of Section 7-A of the Madras General Sales Tax, 1959, the expression in the Act, it was opined as regards the goods mentioned in the First Schedule of the Act that the sale and purchase was liable to tax at the rate and at the point specified therein. It was further held that the goods which were exempt were not taxable goods and, therefore, could not be brought to charge and taxed. However, notwithstanding the goods being taxable goods, there could be circumstances in a given case by reason of which a particular sale or purchase would not attract sales tax.As a sequitur, we are obliged to observe that if the contention of the appellant is to be accepted, the respondent though covered by exemption notification under Section 8(3) of the Act could be at a disadvantage because finally when the subsequent sale is made by a non-exempted dealer or tax stands paid on the non-exempted transfer, the goods, i.e., asbestos cement sheet, would suffer the tax on the entire sale consideration. This would place an exempted manufacturer-dealer at a disadvantageous position and make his products uncompetitive inspite of the exemption notifications under Section 8(3) of the Act.28. In the context of the issue in question, the respondents have rightly highlighted that where the appellant wanted to restrict the benefit of ITC when a particular dealer or transaction was exempted, it was so stipulated in the exemption notification issued under Sections 8(3) and 8(4) of the Act. Such notifications admittedly do exist and were issued by the appellant. They are also right in drawing support from the note sheets relating to Finance Bill 2007 as also the communications issued by Commissioner of Commercial Taxes. The note sheets and the communication of the Commissioner draw a clear distinction between exemptions when the goods were not taxable as they do fall under the First Schedule and when an exemption was granted under the Second Schedule, which relates to specified transaction of sale or exempted dealers even when the goods were taxable goods. In latter cases, subsequent dealers undertaking sale of goods would be liable to pay tax on sale of such products. There can be no shadow of doubt that subsequent dealers undertaking sale of goods manufactured and sold by the respondent company would be liable to pay tax on such products. | 0 | 6,362 | 609 | ### 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:
Court posed the following question:- “7. The simple question before us is whether the Bench which decided Pine Chemicals is right in holding that the benefit of the said sub-section is available even where the goods are exempted with reference to industrial unit and for a specified period, viz., period of five years from the date the relevant unit goes into production. In other words, the question is whether an exemption of the nature granted under Government Order No. 159 dated 26-03-1971 is an exemption available “only in specified circumstances or under specified conditions” within the meaning of the Explanation to Section 8(2-A), as contended by the State or is it a case where the goods are exempt from the tax ‘generally’ within the meaning of Section 8(2-A), as contended by the respondents/dealers? We are of the opinion that the respondents/dealers’ contention cannot be accepted in view of the clear and unambiguous language of the sub-section.” 25. Thus, the Court drew a distinction between goods, generally exempt from tax after noticing that Section 8(2A) of the Central Sales Tax Act specifically uses the expression “exempt from tax generally or subject to tax generally at a rate which is lower than 4%”, and accordingly observed that when the goods are exempt under certain specified circumstances alone, the exemption is not a general, but a conditional one. In such circumstances, it cannot be said that the goods are exempt from tax generally for the exemption may vary from unit to unit and would depend upon date of commencement of production of each unit. Reference was made to earlier decision in Indian Aluminium Cables Limited v. State of Haryana (1976) 4 SCC 27 ), wherein it has been held that exemption from tax when conferred by conditions or in certain circumstances, there was no exemption from tax generally. 26. At this juncture, we are required to understand the effect of the principles spelt out in above decisions especially in K.N. Kandaswami and Others (supra) on the facts of the present case. There is no doubt that a distinction has to be drawn between exempted goods, which means complete exemption for the specified goods, and when the goods are taxable goods, but a transaction or a person is granted exemption. When the goods are exempt, there would be no taxable transactions or exemption to a taxable person. In other cases, goods might be taxable, but exemption could be given in respect of a taxable event, i.e., exemption to specified transactions from liability of tax or exemption to a taxable person, though the goods are taxable. Such exemptions operate in circumscribed boundaries and not as expansive as in the case of taxable goods. Exemptions with reference to taxable events or taxable persons would not exempt the goods as such, for a subsequent transaction or when the goods are sold or purchased by a non-specified person, the subsequent transaction or the taxable person would be liable to pay tax. It is, in this context, it has been highlighted by the respondent and, in our opinion, absolutely correctly that Section 4 of the Act provides for levy of tax in a situation where the goods, which were not exempted but could otherwise not be subjected to tax on account of exemption granted to a person or to a transaction. The goods remain taxable goods through exemption stands granted to a particular individual or a specified transaction. That being so, all subsequent transactions in those goods, which are not specifically exempt and not undertaken by an exempted person could be subjected to taxation. Therefore, the appellant though exempted from payment of tax, subsequent transactions of sale of asbestos cement sheets would be taxable. The transaction of sale by the manufacturer/dealer covered by the exemption notifications issued under Section 8(3) of the Act would be protected or an exempted transaction, but the goods not being exempted goods would be taxable and could be taxed on the happening of a taxable or charging event. It is simply because the goods are not exempt from tax or exempted goods, but are taxable. As a logical corollary it follows that the Value Added Tax would have to be paid on the taxable goods in a subsequent transaction by the purchasing dealer. 27. As a sequitur, we are obliged to observe that if the contention of the appellant is to be accepted, the respondent though covered by exemption notification under Section 8(3) of the Act could be at a disadvantage because finally when the subsequent sale is made by a non-exempted dealer or tax stands paid on the non-exempted transfer, the goods, i.e., asbestos cement sheet, would suffer the tax on the entire sale consideration. This would place an exempted manufacturer-dealer at a disadvantageous position and make his products uncompetitive inspite of the exemption notifications under Section 8(3) of the Act.28. In the context of the issue in question, the respondents have rightly highlighted that where the appellant wanted to restrict the benefit of ITC when a particular dealer or transaction was exempted, it was so stipulated in the exemption notification issued under Sections 8(3) and 8(4) of the Act. Such notifications admittedly do exist and were issued by the appellant. They are also right in drawing support from the note sheets relating to Finance Bill 2007 as also the communications issued by Commissioner of Commercial Taxes. The note sheets and the communication of the Commissioner draw a clear distinction between exemptions when the goods were not taxable as they do fall under the First Schedule and when an exemption was granted under the Second Schedule, which relates to specified transaction of sale or exempted dealers even when the goods were taxable goods. In latter cases, subsequent dealers undertaking sale of goods would be liable to pay tax on sale of such products. There can be no shadow of doubt that subsequent dealers undertaking sale of goods manufactured and sold by the respondent company would be liable to pay tax on such products.
### Response:
0
### Explanation:
20. On an analysis of the scheme of the Act, it is manifest that there is difference between exempted goods, i.e., goods on which no Value Added Tax is payable and are, therefore, not taxable and other cases where a particular transaction when it satisfies specific condition is not taxable. In this regard reference to the authority in State of Tamil Nadu v. M.K. Kandaswami & others (1975) 4 SCC 745 ), would be seemly, for this Court had adverted to three distinct concepts; taxable persons, taxable goods and taxable events and how they were distinguished. It was observed in the said case that if the said distinction is overlooked, it may lead to serious error in construction and application of a taxing provision or enactment. In the case of taxable or non-taxable/exempted goods, the focal point and the focus is on the character and class of goods in relation to their exigibility. Referring to the provisions of Section 7-A of the Madras General Sales Tax, 1959, the expression in the Act, it was opined as regards the goods mentioned in the First Schedule of the Act that the sale and purchase was liable to tax at the rate and at the point specified therein. It was further held that the goods which were exempt were not taxable goods and, therefore, could not be brought to charge and taxed. However, notwithstanding the goods being taxable goods, there could be circumstances in a given case by reason of which a particular sale or purchase would not attract sales tax.As a sequitur, we are obliged to observe that if the contention of the appellant is to be accepted, the respondent though covered by exemption notification under Section 8(3) of the Act could be at a disadvantage because finally when the subsequent sale is made by a non-exempted dealer or tax stands paid on the non-exempted transfer, the goods, i.e., asbestos cement sheet, would suffer the tax on the entire sale consideration. This would place an exempted manufacturer-dealer at a disadvantageous position and make his products uncompetitive inspite of the exemption notifications under Section 8(3) of the Act.28. In the context of the issue in question, the respondents have rightly highlighted that where the appellant wanted to restrict the benefit of ITC when a particular dealer or transaction was exempted, it was so stipulated in the exemption notification issued under Sections 8(3) and 8(4) of the Act. Such notifications admittedly do exist and were issued by the appellant. They are also right in drawing support from the note sheets relating to Finance Bill 2007 as also the communications issued by Commissioner of Commercial Taxes. The note sheets and the communication of the Commissioner draw a clear distinction between exemptions when the goods were not taxable as they do fall under the First Schedule and when an exemption was granted under the Second Schedule, which relates to specified transaction of sale or exempted dealers even when the goods were taxable goods. In latter cases, subsequent dealers undertaking sale of goods would be liable to pay tax on sale of such products. There can be no shadow of doubt that subsequent dealers undertaking sale of goods manufactured and sold by the respondent company would be liable to pay tax on such products.
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V. SURENDRA MOHAN Vs. STATE OF TAMIL NADU | the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein……………………………”37. This Court in Union of India and Another Vs. National Federation of the Blind and Others, (2013) 10 SCC 772 has elaborately examined the objects and reasons of the Act, 1995 and laid down following in Paragraph No. 24:-“24. Although, the Disability Rights Movement in India commenced way back in 1977, of which Respondent 1 herein was an active participant, it acquired the requisite sanction only at the launch of the Asian and Pacific Decade of Disabled Persons in 1993–2002, which gave a definite boost to the movement. The main need that emerged from the meet was for a comprehensive legislation to protect the rights of persons with disabilities. In this light, the crucial legislation was enacted in 1995 viz. the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which empowers persons with disabilities and ensures protection of their rights. The Act, in addition to its other prospects, also seeks for better employment opportunities to persons with disabilities by way of reservation of posts and establishment of a special employment exchange for them. For the same, Section 32 of the Act stipulates for identification of posts which can be reserved for persons with disabilities. Section 33 provides for reservation of posts and Section 36 thereof provides that in case a vacancy is not filled up due to non-availability of a suitable person with disability, in any recruitment year such vacancy is to be carried forward in the succeeding recruitment year. The difference of opinion between the appellants and the respondents arises on the point of interpretation of these sections.”38. In the above case, this Court has occasion to consider Section 33 of the Act, 1995. This Court dealt with the manner of computing 3% reservation for the persons with the disabilities as per Section 33 of the Act. Another issue which was considered as to whether post-based reservation must be adhered to or vacancy-based reservation. Learned counsel for the appellant has relied on the above judgment in support of his submission that objective of the Act, 1995 as noticed by this Court have to be fulfilled and restricting the disability to 40%-50% for purpose of eligibility for the post of Civil Judge (Junior Division) shall frustrate the provisions of Section 33 as well as the object of the Act.39. The legal position with regard to reservation of posts for persons with disability is now well established that every appropriate Government is obliged to reserve posts for persons or class of persons with disability. In the present case, we are concerned with partial disability. The present is not a case where the respondent has not reserved the post for partial disability as required by Section 33 of the Act, 1995. Thus, requirement of reservation as mandated by Section 33 is clearly fulfilled. The issue is regarding eligibility of appellant to participate in the selection and as to whether the requirement in the advertisement that only those, who suffer from disability of 40%-50% are eligible, is contrary to the Act, 1995 or is in breach of any statutory provision. The State, which is appointing authority of Public Service in consultation with the High Court with reference to post of Civil Judge (Junior Division) can very well lay down the essential eligibilities and requirement for the post. When the State, High Court and Public Service Commission are of the view that disability, which is suitable for appointment on the post of Civil Judge should be between 40%-50%, the said prescription does not violate any statutory provision nor contravene any of the provisions of the Act, 1995. It is well within the power of appointing authority to prescribe eligibility looking to the nature of the job, which is to be performed by holder of a post.40. A judicial officer in a State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction i.e. fair, logical and reasonable. The High Court in its additional statement has incapsulated the functions and duties of Civil Judge in following words:-“7. That in so far as the area of discharge of functions and duties of the judicial officers viz., Civil Judges is concerned this involves performances of strenuous duties:- they have to read documents, pleadings and ascertain facts and issues; monitor proceedings to ensure that all applicable rules and procedures are strictly followed without any violation; advise advocates, litigants and Court personnel regarding conduct, issues, and proceedings; participate in judicial proceedings to help in resolving disputes; preside over hearings and hear allegations made by plaintiffs and defendants to determine whether the evidence supports the charges or the averments made; write decisions on cases independently after reading and analysing evidence and documents; while recording evidence observe the demeanour of witnesses etc. Impaired vision can only make it extremely difficult, even impossible, to perform any of these functions at all. All these apart, he/she has to perform duties such as conducting inquiries, recording dying declarations, going through identification parades, record statements of victims, conduct in-camera proceedings, passing orders on remand and extension and other administrative functions. In so far as District judges are concerned, apart from performing their usual judicial duties, they have to perform a myriad administrative duties also. Therefore, creating any reservation in appointment for those with disabilities beyond the 50% level is far from advisable as it may create practical and seemingly other avoidable complications. Moreover, given the need to prepare judgments based on the case papers and other material records in a confidential manner, the assistance of a scribe or the like completely takes away the secrecy and discreetness that come with the demands of the post.”41. | 0[ds]4. The advertisement, thus, clearly provided that post of Civil Judge has been identified as suitable for partially deaf/partially blind/ortho categories of differently abled persons (40%-50% disability). In the online application submitted by petitioner in the column ofy, he has only mentionedof disability, whichwas submitted by the appellant as required by Rules, 2007 as well as the advertisement dated 26.08.2014 mentioned in Column (3)ty in his/her case isThus, according to ownhe appellant, he was suffering with disability of 70%, which made him ineligible for the post of Civil Judge advertised by notification dated 26.08.2014 since the disability required for the post was only 40%-50%.During the pendency of the writ petition an amendment application was filed by the appellant to quash the Government letter dated 08.08.2014 which amendment application was allowed by the High Court and even in the amendment application filed by the appellant the notification dated 26.08.2014 issued by the TNPC was not challenged. The appellant cannot be allowed to question the condition of eligibility with regard to partial blindness i.e. 40%-50% when he failed to challenge the advertisement dated 26.08.2014 providing for the said requirement. The appellant applied inof the aboveadvertisement and participated in the written examination and when he was not called for oral test, he filed writ petition. It was under the interim order of the High Court that he was permitted to participate in oral test but the High Court by interim order had directed not to declare the result of theNos.2 and 317. Issue Nos. 2 and 3 being interconnected are taken together. The Government order dated 08.08.2014 as already extracted above, addressed to the Tamil Nadu Public Service Commission states that the High Court has considered the Tamil Nadu Public Service Commissions letter dated 04.08.2014 and accepts the proposal to go ahead with the selection for the posts of Civil Judge notifying thety as 40- 50% for partially blind and partially deaf. Thus, the Government Order was issued after due consultation of the High Court, which had agreed with providing forty as 40%-50% for partially blind and partially deaf for the post ofCivil Judge (JuniorDivision). Whether Condition of 40%-50% for partially blind and partially deaf is a valid condition or the said condition is in breach of provisions of the Act, 1995, are questions to be answered.21. For the purposes of present case, we are not concerned with complete blindness, since by notification dated 31.08.2012, exemption has already been granted under proviso to Section 33 of the Act, 1995 in reference to the post ofCivil Judge (JuniorDivision) exempting complete blindness and complete hearing impairment for the post. Thus, those candidates, who are completely blind are clearly not eligible for the post.24. Partially blind is a word which is not defined in the Act. A disability may be partial or total, a temporary or permanent. We are concerned in this case with partial disability which is not total.he submissions of learned counsel for the appellant in this context need to be considered. It is submitted that those who suffer from partial blindness of more than 50% are also partial blind hence how can they be excluded from consideration. The worday be a general concept but where a percentage has been fixed looking tob, it cannot be said that all partially blind are eligible. There is a valid classification with a nexus to object sought to be achieved, when eligibility is fixed 40% to 50% of disability.The explanation of the Rule 10 contains thewhich were earlier noticed in the Government order dated 11.04.2005. It is true that the amendment made in Rule 10 by the Government order dated 03.04.2018 has no application and not relevant for determining the issue in the present case but incorporation of a proviso into the explanation of Rule 10 manifests the intention of Rule making authority which was earlier manifested in the executive order dated 11.04.2005.30. At this stage, we may deal withhe submissions, which has been raised by the learned counsel for the appellants. Learned counsel for the appellant submits that High Court has relied on proposed amendments to Rules, 2007, which was undertaken by the State Government with the High Court on its administrative side ina Division Bench judgment of Madras High Court in Writ Petition No. 27089 of 2008. The High Court in Paragraph No. 22(xii) has noticed the Government Order dated 14.03.2013 by which the Governmentof Tamil Naduhas sent a letter dated 06.02.2013 to the High Court seeking approval for an amendment to the Recruitment Rules especially Rule 10. A draft of the amendment proposed to the Rules 5 and 10 was also extracted in Paragraph No. 22(xii).31. Learned counsel submits that the proposed amendment was under consideration of the High Court and several correspondences took place between the High Court and thef Tamil Nadubut amendments could not be finalised till the completion of selection hence reliance by the High Court on the proposed amendments was wholly uncalled for. High Court has also noticed that by resolution of the Full Court dated 05.07.2014, the matter was referred to the Rule Committee but before the Rule Committee could take a decision, the process of selection of 162 posts had begun. High Court after noticing the aforesaid fact has further noticed the latter dated 04.08.2014 sent by the Public Service Commission to the Government seeking consent of the Government to issue a Notification for recruitment, fixing 40%-50% disability for partially blind and partially deaf candidates.High Court, thus, was well aware that the notification dated 26.08.2014 issued by the Public Service Commission was initiated on the basis of the Government Order dated 04.08.2014 and the amendment of the Rules as proposed had nothing to do with the advertisement issued by the Public Service Commission. The advertisement dated 26.08.2014 also has specifically referred to the G.O. of the Government dated 08.08.2014. Thus, in the recruitment in question the proposed amendment in the Rules neither played any role nor had any relevance. High Court has noticed the aforesaid facts, for the completion of facts. It is clear that the proposed amendments had no relevance with regard to recruitment in question. The submission of the learned counsel for the appellants that High Court has relied on the proposed amendments, thus, has no substance.33. We now again revert back to the Constitutional Scheme with regard to subordinate judiciary. Section 33 of the Act, 1995 provides that reservation for persons or class of persons with classesof disability, whichis referable to Article 16(1) of the Constitution of India. This Court had occasion to consider a State Legislation referable to Article 16(4) of the Constitution of India inar and Another Vs. Bal Mukund Sah and Others, (2000) 4 SCC 640. A Constitution Bench in the above case had occasion to consider a question of recruitment of District Judge and other judicial officers in theof Bihar incontext of a State Legislation namely Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991. By the aforesaid Act, 1991 reservation for direct recruitment to the posts in the judiciary of the State were provided for. Advertisement was issued reserving posts as per the Act, 1991, which was challenged in the High Court. High Court has struck down the terms of advertisement holding it ultra vires to the provision of Article 233 of the Constitution. TheBihar took the matter to this Court. A Constitution Bench of this Court in the above case came to examine thent to the judicial service in context of the reservation as provided by the State Act.From the facts as noticed above, the State Government has consulted both the Public Service Commission as well as the High Court in reference to appointment of disabled persons on the post ofCivil Judge (JuniorDivision). There is consensus in the view of State Government, Public Service Commission and the High Court that partially blind and partially deaf persons suffering with disability be allowed to participate in the recruitment, who has disability of 40%-50%. The High Court being well aware about the requirements for the appointment in the judicial service and it being guardian of subordinate judiciary, has a say in the eligibility of a person, who seeks appointment on the post ofCivil Judge (JuniorDivision). Judicial service being part of Public Service, the State in consultation with the High court is fully empowered to lay down the eligibilities for selection on the post ofCivil Judge (JuniorDivision). The Government Order dated 08.08.2014 supplements the Rules, 2007 and in no manner contravene any of the provisions of the Rules. The condition of having 40%-50% disability was prescribed by the Public Service Commission as per the Government Order issued by thef Tamil Naduafter consultation with the High Court. The above condition in no manner can be said to be invalid. Learned counsel for the appellant has submitted that restricting the disability to 40%-50% in reference to persons having partial blindness is clearly denyingof reservation asprovided under Section 33 of the Act, 1995 and is not in accord with Section 33 of the Act.36. Section 33 of the Act, 1995 requires that every appropriate Government shall appoint in every establishment suches not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from Blindness or low vision.In the above case, this Court has occasion to consider Section 33 of the Act, 1995. This Court dealt with the manner of computing 3% reservation for the persons with the disabilities as per Section 33 of the Act. Another issue which was considered as to whether post-based reservation must be adhered to or vacancy-based reservation. Learned counsel for the appellant has relied on the above judgment in support of his submission thatof the Act, 1995as noticed by this Court have to be fulfilled and restricting the disability to 40%-50% forty for the post ofCivil Judge (JuniorDivision) shall frustrate the provisions of Section 33 as well as the object of the Act.39. The legal position with regard to reservation of posts for persons with disability is now well established that every appropriate Government is obliged to reserve posts for persons or class of persons with disability. In the present case, we are concerned with partial disability. The present is not a case where the respondent has not reserved the post for partial disability as required by Section 33of the Act,of reservation asmandated by Section 33 is clearly fulfilled. The issue is regarding eligibility of appellant to participate in the selection and as to whether the requirement in the advertisement that only those, who suffer from disability of 40%-50% are eligible, is contrary to the Act, 1995 or is in breach of any statutory provision. The State, which is appointing authority of Public Service in consultation with the High Court with reference to post ofCivil Judge (JuniorDivision) can very well lay down the essential eligibilities and requirement for the post. When the State, High Court and Public Service Commissionhe view that disability, which is suitable for appointment on the post of Civil Judge should be between 40%-50%, the said prescription does not violate any statutory provision nor contravene any of the provisionsof the Act,It is well within the power of appointing authority to prescribe eligibility looking to thehe job, which is to be performed by holder of a post.40. A judicial officer in a State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction i.e. fair, logical and reasonable. | 0 | 8,467 | 2,176 | ### 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:
the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein……………………………”37. This Court in Union of India and Another Vs. National Federation of the Blind and Others, (2013) 10 SCC 772 has elaborately examined the objects and reasons of the Act, 1995 and laid down following in Paragraph No. 24:-“24. Although, the Disability Rights Movement in India commenced way back in 1977, of which Respondent 1 herein was an active participant, it acquired the requisite sanction only at the launch of the Asian and Pacific Decade of Disabled Persons in 1993–2002, which gave a definite boost to the movement. The main need that emerged from the meet was for a comprehensive legislation to protect the rights of persons with disabilities. In this light, the crucial legislation was enacted in 1995 viz. the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which empowers persons with disabilities and ensures protection of their rights. The Act, in addition to its other prospects, also seeks for better employment opportunities to persons with disabilities by way of reservation of posts and establishment of a special employment exchange for them. For the same, Section 32 of the Act stipulates for identification of posts which can be reserved for persons with disabilities. Section 33 provides for reservation of posts and Section 36 thereof provides that in case a vacancy is not filled up due to non-availability of a suitable person with disability, in any recruitment year such vacancy is to be carried forward in the succeeding recruitment year. The difference of opinion between the appellants and the respondents arises on the point of interpretation of these sections.”38. In the above case, this Court has occasion to consider Section 33 of the Act, 1995. This Court dealt with the manner of computing 3% reservation for the persons with the disabilities as per Section 33 of the Act. Another issue which was considered as to whether post-based reservation must be adhered to or vacancy-based reservation. Learned counsel for the appellant has relied on the above judgment in support of his submission that objective of the Act, 1995 as noticed by this Court have to be fulfilled and restricting the disability to 40%-50% for purpose of eligibility for the post of Civil Judge (Junior Division) shall frustrate the provisions of Section 33 as well as the object of the Act.39. The legal position with regard to reservation of posts for persons with disability is now well established that every appropriate Government is obliged to reserve posts for persons or class of persons with disability. In the present case, we are concerned with partial disability. The present is not a case where the respondent has not reserved the post for partial disability as required by Section 33 of the Act, 1995. Thus, requirement of reservation as mandated by Section 33 is clearly fulfilled. The issue is regarding eligibility of appellant to participate in the selection and as to whether the requirement in the advertisement that only those, who suffer from disability of 40%-50% are eligible, is contrary to the Act, 1995 or is in breach of any statutory provision. The State, which is appointing authority of Public Service in consultation with the High Court with reference to post of Civil Judge (Junior Division) can very well lay down the essential eligibilities and requirement for the post. When the State, High Court and Public Service Commission are of the view that disability, which is suitable for appointment on the post of Civil Judge should be between 40%-50%, the said prescription does not violate any statutory provision nor contravene any of the provisions of the Act, 1995. It is well within the power of appointing authority to prescribe eligibility looking to the nature of the job, which is to be performed by holder of a post.40. A judicial officer in a State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction i.e. fair, logical and reasonable. The High Court in its additional statement has incapsulated the functions and duties of Civil Judge in following words:-“7. That in so far as the area of discharge of functions and duties of the judicial officers viz., Civil Judges is concerned this involves performances of strenuous duties:- they have to read documents, pleadings and ascertain facts and issues; monitor proceedings to ensure that all applicable rules and procedures are strictly followed without any violation; advise advocates, litigants and Court personnel regarding conduct, issues, and proceedings; participate in judicial proceedings to help in resolving disputes; preside over hearings and hear allegations made by plaintiffs and defendants to determine whether the evidence supports the charges or the averments made; write decisions on cases independently after reading and analysing evidence and documents; while recording evidence observe the demeanour of witnesses etc. Impaired vision can only make it extremely difficult, even impossible, to perform any of these functions at all. All these apart, he/she has to perform duties such as conducting inquiries, recording dying declarations, going through identification parades, record statements of victims, conduct in-camera proceedings, passing orders on remand and extension and other administrative functions. In so far as District judges are concerned, apart from performing their usual judicial duties, they have to perform a myriad administrative duties also. Therefore, creating any reservation in appointment for those with disabilities beyond the 50% level is far from advisable as it may create practical and seemingly other avoidable complications. Moreover, given the need to prepare judgments based on the case papers and other material records in a confidential manner, the assistance of a scribe or the like completely takes away the secrecy and discreetness that come with the demands of the post.”41.
### Response:
0
### Explanation:
Service Commission. The advertisement dated 26.08.2014 also has specifically referred to the G.O. of the Government dated 08.08.2014. Thus, in the recruitment in question the proposed amendment in the Rules neither played any role nor had any relevance. High Court has noticed the aforesaid facts, for the completion of facts. It is clear that the proposed amendments had no relevance with regard to recruitment in question. The submission of the learned counsel for the appellants that High Court has relied on the proposed amendments, thus, has no substance.33. We now again revert back to the Constitutional Scheme with regard to subordinate judiciary. Section 33 of the Act, 1995 provides that reservation for persons or class of persons with classesof disability, whichis referable to Article 16(1) of the Constitution of India. This Court had occasion to consider a State Legislation referable to Article 16(4) of the Constitution of India inar and Another Vs. Bal Mukund Sah and Others, (2000) 4 SCC 640. A Constitution Bench in the above case had occasion to consider a question of recruitment of District Judge and other judicial officers in theof Bihar incontext of a State Legislation namely Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991. By the aforesaid Act, 1991 reservation for direct recruitment to the posts in the judiciary of the State were provided for. Advertisement was issued reserving posts as per the Act, 1991, which was challenged in the High Court. High Court has struck down the terms of advertisement holding it ultra vires to the provision of Article 233 of the Constitution. TheBihar took the matter to this Court. A Constitution Bench of this Court in the above case came to examine thent to the judicial service in context of the reservation as provided by the State Act.From the facts as noticed above, the State Government has consulted both the Public Service Commission as well as the High Court in reference to appointment of disabled persons on the post ofCivil Judge (JuniorDivision). There is consensus in the view of State Government, Public Service Commission and the High Court that partially blind and partially deaf persons suffering with disability be allowed to participate in the recruitment, who has disability of 40%-50%. The High Court being well aware about the requirements for the appointment in the judicial service and it being guardian of subordinate judiciary, has a say in the eligibility of a person, who seeks appointment on the post ofCivil Judge (JuniorDivision). Judicial service being part of Public Service, the State in consultation with the High court is fully empowered to lay down the eligibilities for selection on the post ofCivil Judge (JuniorDivision). The Government Order dated 08.08.2014 supplements the Rules, 2007 and in no manner contravene any of the provisions of the Rules. The condition of having 40%-50% disability was prescribed by the Public Service Commission as per the Government Order issued by thef Tamil Naduafter consultation with the High Court. The above condition in no manner can be said to be invalid. Learned counsel for the appellant has submitted that restricting the disability to 40%-50% in reference to persons having partial blindness is clearly denyingof reservation asprovided under Section 33 of the Act, 1995 and is not in accord with Section 33 of the Act.36. Section 33 of the Act, 1995 requires that every appropriate Government shall appoint in every establishment suches not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from Blindness or low vision.In the above case, this Court has occasion to consider Section 33 of the Act, 1995. This Court dealt with the manner of computing 3% reservation for the persons with the disabilities as per Section 33 of the Act. Another issue which was considered as to whether post-based reservation must be adhered to or vacancy-based reservation. Learned counsel for the appellant has relied on the above judgment in support of his submission thatof the Act, 1995as noticed by this Court have to be fulfilled and restricting the disability to 40%-50% forty for the post ofCivil Judge (JuniorDivision) shall frustrate the provisions of Section 33 as well as the object of the Act.39. The legal position with regard to reservation of posts for persons with disability is now well established that every appropriate Government is obliged to reserve posts for persons or class of persons with disability. In the present case, we are concerned with partial disability. The present is not a case where the respondent has not reserved the post for partial disability as required by Section 33of the Act,of reservation asmandated by Section 33 is clearly fulfilled. The issue is regarding eligibility of appellant to participate in the selection and as to whether the requirement in the advertisement that only those, who suffer from disability of 40%-50% are eligible, is contrary to the Act, 1995 or is in breach of any statutory provision. The State, which is appointing authority of Public Service in consultation with the High Court with reference to post ofCivil Judge (JuniorDivision) can very well lay down the essential eligibilities and requirement for the post. When the State, High Court and Public Service Commissionhe view that disability, which is suitable for appointment on the post of Civil Judge should be between 40%-50%, the said prescription does not violate any statutory provision nor contravene any of the provisionsof the Act,It is well within the power of appointing authority to prescribe eligibility looking to thehe job, which is to be performed by holder of a post.40. A judicial officer in a State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction i.e. fair, logical and reasonable.
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M/s. Lakshmiji Sugar Mills Company Private Limited Vs. Commissioner of Income Tax, New Delhi | compulsion if the roads were built for facilitating transportation and improving the business and the flow of supply to and from the factories of the assessee.4. We are unable to agree with the reasoning or the conclusion of the High Court. The general principles governing the determination of the question whether an expenditure is in the nature of capital or revenue expenditure are well known. Where expenditure is incurred while the business is being carried on and not for its extension or for the substantial replacement of its equipment the position would be as follows:-"If the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of brining into existence any such asset or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure." (Vide Assam Bengal Cement Co. Ltd. v. Commr. of Income-tax, West Bengal, 27 ITR 34 at p. 45 = (AIR 1955 SC 89 )."The argument on behalf of the Revenue is that the expenditure which was incurred by the assessee in the present case was intended for bringing into existence an advantage for the enduring benefit of the business. On the other hand it has been maintained on behalf of the assessee that the expenditure was properly attributable to running the business or working it with a view to produce the profits. The Calcutta High Court had occasion to consider an identical question in Commr. of Income-tax, West Bengal v. Hindusthan Motors Ltd., (1968) 68 ITR 301 (Cal) . There the location of a factory of motor car manufacturing company was a little distance away from the main road. The approach road belonged to the government. It fell into disrepair and began to cause transportation difficulties to the assessee. The Government was not prepared to meet the expenses for the repair of the road. The assessee offered to contribute a certain amount for the improvement. The High Court had no difficulty in coming to the conclusion that the money was spent not so much to bring about any asset or advantage of enduring benefit to itself but it was incurred for its efficient and convenient running and therefore it was of revenue nature. This case has been sought to be distinguished on behalf of the Revenue on the ground that the expenditure was incurred only to meet the expense of the repair and no asset or advantage of an enduring benefit accrued or resulted to the assessee. This distinction does not appear to be sound because in the diverse nature of business operations it is difficult to lay down a test which would apply to all situations. The criteria has to be applied from the business point of view and on a fair appreciation of the whole situation. In the present case apart from the element of compulsion the roads which were constructed and developed were not the property of the assessee nor is it the case of the Revenue that the entire cost of development of those roads was defrayed by the assessee. It only made a certain contribution for road development between the various cane producing centres and the mills. The apparent object and propose was to facilitate the running of its motor vehicles or other means employed for transportation of sugarcane to the factory. From the business point of view and on a fair appreciation of the whole situation the assessee considered that the development of the road in question could greatly facilitate the transportation of sugarcane. This was essential for the benefit of its business which was of manufacturing sugar in which the main raw material admittedly consisted of sugarcane. These facts would bring it within the second part of the principles mentioned before, namely, that the expenditure was incurred for running the business or working it with a view to produce the profits without the assessee getting any advantage of an enduring benefit to itself. In our judgment the ratio of the decision in Commissioner of Income-tax, West Bengal, v. Royal Calcutta Turf Club, 41 ITR 414 = (AIR 1961 SC 1028 ) would be applicable to the present case. There the question was whether the expenditure on running a School for training of Jockeys by the Royal Calcutta Turf Club could be claimed as a deduction under Section 10 (2) (xv) of the Indian Income-tax Act 1922. It was pointed out that the business of the club was to run race meetings on a commercial scale for which it was necessary to have races of a high order. For the popularity of races and to make its business profitable it was necessary for the club to have Jockeys or requisite skill and experience in sufficient numbers. It was for that purpose that the School had been started for training Indian Jockeys. If there had not been sufficient number of Indian Jockeys the interest of the club would have incurred on running the School must be regarded as having been wholly and exclusively laid out for the purpose of the business of the club. Emphasis was laid on the principle that in order to justify a deduction it must be for reasons of commercial expediency and it must be incurred for the assessees business.5. We are satisfied that in the present case the expenditure was incurred by the assessee for reasons of commercial expediency apart from statutory compulsion to which reference has been made before. The development of the roads was necessarily meant for facilitation the carrying on of the assessees business. Furthermore the Tribunal did not give any finding that the roads were to be altogether newly made and that the assessee would get an enduring benefit from these roads. The expenditure in question should have therefore, been allowed as an admissible deduction. | 1[ds]The Calcutta High Court had occasion to consider an identical question in Commr. of Income-tax, West Bengal v. Hindusthan Motors Ltd., (1968) 68 ITR 301 (Cal) . There the location of a factory of motor car manufacturing company was a little distance away from the main road. The approach road belonged to the government. It fell into disrepair and began to cause transportation difficulties to the assessee. The Government was not prepared to meet the expenses for the repair of the road. The assessee offered to contribute a certain amount for the improvement. The High Court had no difficulty in coming to the conclusion that the money was spent not so much to bring about any asset or advantage of enduring benefit to itself but it was incurred for its efficient and convenient running and therefore it was of revenue nature. This case has been sought to be distinguished on behalf of the Revenue on the ground that the expenditure was incurred only to meet the expense of the repair and no asset or advantage of an enduring benefit accrued or resulted to the assessee. This distinction does not appear to be sound because in the diverse nature of business operations it is difficult to lay down a test which would apply to all situations. The criteria has to be applied from the business point of view and on a fair appreciation of the whole situation. In the present case apart from the element of compulsion the roads which were constructed and developed were not the property of the assessee nor is it the case of the Revenue that the entire cost of development of those roads was defrayed by the assessee. It only made a certain contribution for road development between the various cane producing centres and the mills. The apparent object and propose was to facilitate the running of its motor vehicles or other means employed for transportation of sugarcane to the factory. From the business point of view and on a fair appreciation of the whole situation the assessee considered that the development of the road in question could greatly facilitate the transportation of sugarcane. This was essential for the benefit of its business which was of manufacturing sugar in which the main raw material admittedly consisted of sugarcane. These facts would bring it within the second part of the principles mentioned before, namely, that the expenditure was incurred for running the business or working it with a view to produce the profits without the assessee getting any advantage of an enduring benefit to itself. In our judgment the ratio of the decision in Commissioner of Income-tax, West Bengal, v. Royal Calcutta Turf Club, 41 ITR 414 = (AIR 1961 SC 1028 ) would be applicable to the present case. There the question was whether the expenditure on running a School for training of Jockeys by the Royal Calcutta Turf Club could be claimed as a deduction under Section 10 (2) (xv) of the Indian Income-tax Act 1922. It was pointed out that the business of the club was to run race meetings on a commercial scale for which it was necessary to have races of a high order. For the popularity of races and to make its business profitable it was necessary for the club to have Jockeys or requisite skill and experience in sufficient numbers. It was for that purpose that the School had been started for training Indian Jockeys. If there had not been sufficient number of Indian Jockeys the interest of the club would have incurred on running the School must be regarded as having been wholly and exclusively laid out for the purpose of the business of the club. Emphasis was laid on the principle that in order to justify a deduction it must be for reasons of commercial expediency and it must be incurred for the assessees business.5. We are satisfied that in the present case the expenditure was incurred by the assessee for reasons of commercial expediency apart from statutory compulsion to which reference has been made before. The development of the roads was necessarily meant for facilitation the carrying on of the assessees business. Furthermore the Tribunal did not give any finding that the roads were to be altogether newly made and that the assessee would get an enduring benefit from these roads. The expenditure in question should have therefore, been allowed as an admissible deduction.We are unable to agree with the reasoning or the conclusion of the High Court. The general principles governing the determination of the question whether an expenditure is in the nature of capital or revenue expenditure are well known. Where expenditure is incurred while the business is being carried on and not for its extension or for the substantial replacement of its equipment the position would be asthe expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of brining into existence any such asset or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure." (Vide Assam Bengal Cement Co. Ltd. v. Commr. ofWest Bengal, 27 ITR 34 at p. 45 = (AIR 1955 SC 89 ). | 1 | 1,559 | 958 | ### Instruction:
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compulsion if the roads were built for facilitating transportation and improving the business and the flow of supply to and from the factories of the assessee.4. We are unable to agree with the reasoning or the conclusion of the High Court. The general principles governing the determination of the question whether an expenditure is in the nature of capital or revenue expenditure are well known. Where expenditure is incurred while the business is being carried on and not for its extension or for the substantial replacement of its equipment the position would be as follows:-"If the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of brining into existence any such asset or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure." (Vide Assam Bengal Cement Co. Ltd. v. Commr. of Income-tax, West Bengal, 27 ITR 34 at p. 45 = (AIR 1955 SC 89 )."The argument on behalf of the Revenue is that the expenditure which was incurred by the assessee in the present case was intended for bringing into existence an advantage for the enduring benefit of the business. On the other hand it has been maintained on behalf of the assessee that the expenditure was properly attributable to running the business or working it with a view to produce the profits. The Calcutta High Court had occasion to consider an identical question in Commr. of Income-tax, West Bengal v. Hindusthan Motors Ltd., (1968) 68 ITR 301 (Cal) . There the location of a factory of motor car manufacturing company was a little distance away from the main road. The approach road belonged to the government. It fell into disrepair and began to cause transportation difficulties to the assessee. The Government was not prepared to meet the expenses for the repair of the road. The assessee offered to contribute a certain amount for the improvement. The High Court had no difficulty in coming to the conclusion that the money was spent not so much to bring about any asset or advantage of enduring benefit to itself but it was incurred for its efficient and convenient running and therefore it was of revenue nature. This case has been sought to be distinguished on behalf of the Revenue on the ground that the expenditure was incurred only to meet the expense of the repair and no asset or advantage of an enduring benefit accrued or resulted to the assessee. This distinction does not appear to be sound because in the diverse nature of business operations it is difficult to lay down a test which would apply to all situations. The criteria has to be applied from the business point of view and on a fair appreciation of the whole situation. In the present case apart from the element of compulsion the roads which were constructed and developed were not the property of the assessee nor is it the case of the Revenue that the entire cost of development of those roads was defrayed by the assessee. It only made a certain contribution for road development between the various cane producing centres and the mills. The apparent object and propose was to facilitate the running of its motor vehicles or other means employed for transportation of sugarcane to the factory. From the business point of view and on a fair appreciation of the whole situation the assessee considered that the development of the road in question could greatly facilitate the transportation of sugarcane. This was essential for the benefit of its business which was of manufacturing sugar in which the main raw material admittedly consisted of sugarcane. These facts would bring it within the second part of the principles mentioned before, namely, that the expenditure was incurred for running the business or working it with a view to produce the profits without the assessee getting any advantage of an enduring benefit to itself. In our judgment the ratio of the decision in Commissioner of Income-tax, West Bengal, v. Royal Calcutta Turf Club, 41 ITR 414 = (AIR 1961 SC 1028 ) would be applicable to the present case. There the question was whether the expenditure on running a School for training of Jockeys by the Royal Calcutta Turf Club could be claimed as a deduction under Section 10 (2) (xv) of the Indian Income-tax Act 1922. It was pointed out that the business of the club was to run race meetings on a commercial scale for which it was necessary to have races of a high order. For the popularity of races and to make its business profitable it was necessary for the club to have Jockeys or requisite skill and experience in sufficient numbers. It was for that purpose that the School had been started for training Indian Jockeys. If there had not been sufficient number of Indian Jockeys the interest of the club would have incurred on running the School must be regarded as having been wholly and exclusively laid out for the purpose of the business of the club. Emphasis was laid on the principle that in order to justify a deduction it must be for reasons of commercial expediency and it must be incurred for the assessees business.5. We are satisfied that in the present case the expenditure was incurred by the assessee for reasons of commercial expediency apart from statutory compulsion to which reference has been made before. The development of the roads was necessarily meant for facilitation the carrying on of the assessees business. Furthermore the Tribunal did not give any finding that the roads were to be altogether newly made and that the assessee would get an enduring benefit from these roads. The expenditure in question should have therefore, been allowed as an admissible deduction.
### Response:
1
### Explanation:
The Calcutta High Court had occasion to consider an identical question in Commr. of Income-tax, West Bengal v. Hindusthan Motors Ltd., (1968) 68 ITR 301 (Cal) . There the location of a factory of motor car manufacturing company was a little distance away from the main road. The approach road belonged to the government. It fell into disrepair and began to cause transportation difficulties to the assessee. The Government was not prepared to meet the expenses for the repair of the road. The assessee offered to contribute a certain amount for the improvement. The High Court had no difficulty in coming to the conclusion that the money was spent not so much to bring about any asset or advantage of enduring benefit to itself but it was incurred for its efficient and convenient running and therefore it was of revenue nature. This case has been sought to be distinguished on behalf of the Revenue on the ground that the expenditure was incurred only to meet the expense of the repair and no asset or advantage of an enduring benefit accrued or resulted to the assessee. This distinction does not appear to be sound because in the diverse nature of business operations it is difficult to lay down a test which would apply to all situations. The criteria has to be applied from the business point of view and on a fair appreciation of the whole situation. In the present case apart from the element of compulsion the roads which were constructed and developed were not the property of the assessee nor is it the case of the Revenue that the entire cost of development of those roads was defrayed by the assessee. It only made a certain contribution for road development between the various cane producing centres and the mills. The apparent object and propose was to facilitate the running of its motor vehicles or other means employed for transportation of sugarcane to the factory. From the business point of view and on a fair appreciation of the whole situation the assessee considered that the development of the road in question could greatly facilitate the transportation of sugarcane. This was essential for the benefit of its business which was of manufacturing sugar in which the main raw material admittedly consisted of sugarcane. These facts would bring it within the second part of the principles mentioned before, namely, that the expenditure was incurred for running the business or working it with a view to produce the profits without the assessee getting any advantage of an enduring benefit to itself. In our judgment the ratio of the decision in Commissioner of Income-tax, West Bengal, v. Royal Calcutta Turf Club, 41 ITR 414 = (AIR 1961 SC 1028 ) would be applicable to the present case. There the question was whether the expenditure on running a School for training of Jockeys by the Royal Calcutta Turf Club could be claimed as a deduction under Section 10 (2) (xv) of the Indian Income-tax Act 1922. It was pointed out that the business of the club was to run race meetings on a commercial scale for which it was necessary to have races of a high order. For the popularity of races and to make its business profitable it was necessary for the club to have Jockeys or requisite skill and experience in sufficient numbers. It was for that purpose that the School had been started for training Indian Jockeys. If there had not been sufficient number of Indian Jockeys the interest of the club would have incurred on running the School must be regarded as having been wholly and exclusively laid out for the purpose of the business of the club. Emphasis was laid on the principle that in order to justify a deduction it must be for reasons of commercial expediency and it must be incurred for the assessees business.5. We are satisfied that in the present case the expenditure was incurred by the assessee for reasons of commercial expediency apart from statutory compulsion to which reference has been made before. The development of the roads was necessarily meant for facilitation the carrying on of the assessees business. Furthermore the Tribunal did not give any finding that the roads were to be altogether newly made and that the assessee would get an enduring benefit from these roads. The expenditure in question should have therefore, been allowed as an admissible deduction.We are unable to agree with the reasoning or the conclusion of the High Court. The general principles governing the determination of the question whether an expenditure is in the nature of capital or revenue expenditure are well known. Where expenditure is incurred while the business is being carried on and not for its extension or for the substantial replacement of its equipment the position would be asthe expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of brining into existence any such asset or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure." (Vide Assam Bengal Cement Co. Ltd. v. Commr. ofWest Bengal, 27 ITR 34 at p. 45 = (AIR 1955 SC 89 ).
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Girja Shankar Kashi Ram Vs. The Gujarat Spinning & Weaving Co. Ltd | application under S. 42(4) but where the representative union does not choose to appear, there are provisions in Ss. 32 and 33 which permit others to appear in proceedings under the Act. Section 32 gives power to a conciliator, a board, a wage board, a labour court and the industrial court to permit an individual, whether an employee or not, to appear in any proceeding before him or it. This shows that the complete ban imposed by S.27A can be removed if the authorities under the Act think it expedient to permit another person to appear and that person may be an employee or not. Thus the employee who has made an application under S. 42(4) may be permitted to appear before the authorities under the Act; but this provision is subject to a proviso, namely, that no such individual which would include an employee who has himself made an application under S. 42(4), shall be permitted to appear in any proceeding in which the representative union has appeared as the representative of employees. Reading therefore Ss. 27A, 30 and 32 together, it is clear that no one else can appear in any proceeding under the Act except a representative of employees; but the authorities are empowered to permit anyone to appear whether he be an employee or not, if they consider it expedient for the ends of justice [and we have no doubt that where representative of employees does not choose to appear, the authorities will generally permit the employee who has made the application under S. 42(4) to appear], but this power is subject to the proviso, namely, that no one will be allowed to appear if the representative union has made an appearance. It will be seen that the proviso puts the representative union in a special position out of the six classes mentioned as representatives of employees in S. 30. Thus S. 32 makes it clear that where the representative union, out of the six classes in S. 30, appears, no one else can appear, including the person who might have made an application under S. 42(4). If the other five classes which are mentioned in S. 30 as representatives of employees appear, the authorities have the power to allow the employee or any other person to appear along with them.Then we come to S. 33, which starts with a non obstante clause and deals with the appearance of an employee or a representative union through any person. Section 33 thus is an exception to S. 27A and authorizes an employee who could not appear in any proceeding under the Act except through the representative of employees under S. 27A, to appear through any person in certain proceedings mentioned in S. 33, but this again is subject to two provisos, with the first of which we are not concerned here. The second proviso lays down that no employee shall be entitled to appear through any person in any proceeding under the Act in which the representative union has appeared as the representative of employees. This proviso again gives a special Position to the representative union out of the six classes of representatives of employees provided in S. 30 and makes it clear that though an employee may appear in certain proceedings specified in S. 33 through any person in spite of S. 27A, he cannot do so where a representative union has appeared as the representative of employees. Here again the position is the same as in S. 32; if a representative of employees other than a representative union has appeared in the proceeding, the employee can also appear through any person in the Proceedings mentioned in S. 33; but he cannot do so where the representative of employees which has appeared even in proceedings under S. 33 is the representative union. The result therefore of taking Ss. 27A, 32 and 33 together is that S. 27A first places a complete ban on the appearance of an employee in any proceedings under the Act once it has commenced except through the representative of employees. But there are two exceptions to this ban contained in Ss. 32 and 33. Section 32 is concerned with all proceedings before the authorities and gives power to the authorities under the Act to permit an employee himself to appear even though a representative of employees may have appeared but this permission cannot be granted where the representative union has appeared as a representative of employees. Section 33 which is the other exception allows an employee to appear through any person in certain proceedings only even though a representative of employees might have appeared; but here again it is subject to this that no one else, not even the employee who might have made the application, will have the right to appear if a representative union has put in appearance as the representative of employees.It is quite clear therefore that the scheme of the Act is that where a representative union appears in any proceeding under the Act, no one else can be allowed to appear, not even the employee at whose instance the proceedings might have began under S. 42(4). But where the appearance is by any representative of employees other than a representative union, the authorities under S. 32 can permit the employee to appear himself in all proceedings before them and further the employee is entitled to appear by any person in certain proceedings specified in S. 33. But whenever the representative union has made an appearance, even the employee cannot appear in any proceeding under the Act and the representation must be confined only to the representative union. The complete ban therefore laid by S. 27A on representation otherwise than through a representative of employees remains complete where the representative of employees to the representative union that has appeared; but if the representative of employees that has appeared to other than the representative union, then Ss. 32 and 33 provide for exceptions with which we have already dealt. | 0[ds]It will be seen that S. 27A provides that no employee shall be allowed to appear or act in any proceedings under the Act, except through the representative of employees, the only exception to this being the provisions of Ss. 32 and 33. Therefore, this section completely bans the appearance of an employee or of anyone on his behalf in any proceeding after it has once commenced except through the representative of employees. The only exceptions to this complete ban are to be found in Ss. 32 and 33, to which we shall presently refer. But it is clear that bona fides or mala fides of the representatives of employees can have nothing to do with the ban placed by S. 27A on the appearance of anyone also except the representative of employees as defined in S. 30 and that if anyone else can appear in any proceeding, we must find a provision in that behalf in either S. 32 or S. 33 which are the only exceptions to S. 27A. It may be noticed that there is no exception in S. 27A in favour of the employee, who might have made an application under S. 42(4), to appear on his own behalf and the ban which is placed by S. 27A will apply equally to such an employee. In order, however, to soften the rigour of the provisions of S. 27A, for it may well be that the representative of employees may not choose to appear in many proceedings started by an employee under S. 42(4), exceptions are provided in Ss. 32 and 33. The scheme of these three provisions clearly is that if the representative union appears, no one else can appear and carry on a proceeding, even if it be begun on an application under S. 42(4) but where the representative union does not choose to appear, there are provisions in Ss. 32 and 33 which permit others to appear in proceedings under the Act. Section 32 gives power to a conciliator, a board, a wage board, a labour court and the industrial court to permit an individual, whether an employee or not, to appear in any proceeding before him or it. This shows that the complete ban imposed by S.27A can be removed if the authorities under the Act think it expedient to permit another person to appear and that person may be an employee or not. Thus the employee who has made an application under S. 42(4) may be permitted to appear before the authorities under the Act; but this provision is subject to a proviso, namely, that no such individual which would include an employee who has himself made an application under S. 42(4), shall be permitted to appear in any proceeding in which the representative union has appeared as the representative of employees. Reading therefore Ss. 27A, 30 and 32 together, it is clear that no one else can appear in any proceeding under the Act except a representative of employees; but the authorities are empowered to permit anyone to appear whether he be an employee or not, if they consider it expedient for the ends of justice [and we have no doubt that where representative of employees does not choose to appear, the authorities will generally permit the employee who has made the application under S. 42(4) to appear], but this power is subject to the proviso, namely, that no one will be allowed to appear if the representative union has made an appearance. It will be seen that the proviso puts the representative union in a special position out of the six classes mentioned as representatives of employees in S. 30. Thus S. 32 makes it clear that where the representative union, out of the six classes in S. 30, appears, no one else can appear, including the person who might have made an application under S. 42(4). If the other five classes which are mentioned in S. 30 as representatives of employees appear, the authorities have the power to allow the employee or any other person to appear along with them.Then we come to S. 33, which starts with a non obstante clause and deals with the appearance of an employee or a representative union through any person. Section 33 thus is an exception to S. 27A and authorizes an employee who could not appear in any proceeding under the Act except through the representative of employees under S. 27A, to appear through any person in certain proceedings mentioned in S. 33, but this again is subject to two provisos, with the first of which we are not concerned here. The second proviso lays down that no employee shall be entitled to appear through any person in any proceeding under the Act in which the representative union has appeared as the representative of employees. This proviso again gives a special Position to the representative union out of the six classes of representatives of employees provided in S. 30 and makes it clear that though an employee may appear in certain proceedings specified in S. 33 through any person in spite of S. 27A, he cannot do so where a representative union has appeared as the representative of employees. Here again the position is the same as in S. 32; if a representative of employees other than a representative union has appeared in the proceeding, the employee can also appear through any person in the Proceedings mentioned in S. 33; but he cannot do so where the representative of employees which has appeared even in proceedings under S. 33 is the representative union. The result therefore of taking Ss. 27A, 32 and 33 together is that S. 27A first places a complete ban on the appearance of an employee in any proceedings under the Act once it has commenced except through the representative of employees. But there are two exceptions to this ban contained in Ss. 32 and 33. Section 32 is concerned with all proceedings before the authorities and gives power to the authorities under the Act to permit an employee himself to appear even though a representative of employees may have appeared but this permission cannot be granted where the representative union has appeared as a representative of employees. Section 33 which is the other exception allows an employee to appear through any person in certain proceedings only even though a representative of employees might have appeared; but here again it is subject to this that no one else, not even the employee who might have made the application, will have the right to appear if a representative union has put in appearance as the representative of employees.It is quite clear therefore that the scheme of the Act is that where a representative union appears in any proceeding under the Act, no one else can be allowed to appear, not even the employee at whose instance the proceedings might have began under S. 42(4). But where the appearance is by any representative of employees other than a representative union, the authorities under S. 32 can permit the employee to appear himself in all proceedings before them and further the employee is entitled to appear by any person in certain proceedings specified in S. 33. But whenever the representative union has made an appearance, even the employee cannot appear in any proceeding under the Act and the representation must be confined only to the representative union. The complete ban therefore laid by S. 27A on representation otherwise than through a representative of employees remains complete where the representative of employees to the representative union that has appeared; but if the representative of employees that has appeared to other than the representative union, then Ss. 32 and 33 provide for exceptions with which we have already dealt. | 0 | 3,315 | 1,417 | ### Instruction:
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application under S. 42(4) but where the representative union does not choose to appear, there are provisions in Ss. 32 and 33 which permit others to appear in proceedings under the Act. Section 32 gives power to a conciliator, a board, a wage board, a labour court and the industrial court to permit an individual, whether an employee or not, to appear in any proceeding before him or it. This shows that the complete ban imposed by S.27A can be removed if the authorities under the Act think it expedient to permit another person to appear and that person may be an employee or not. Thus the employee who has made an application under S. 42(4) may be permitted to appear before the authorities under the Act; but this provision is subject to a proviso, namely, that no such individual which would include an employee who has himself made an application under S. 42(4), shall be permitted to appear in any proceeding in which the representative union has appeared as the representative of employees. Reading therefore Ss. 27A, 30 and 32 together, it is clear that no one else can appear in any proceeding under the Act except a representative of employees; but the authorities are empowered to permit anyone to appear whether he be an employee or not, if they consider it expedient for the ends of justice [and we have no doubt that where representative of employees does not choose to appear, the authorities will generally permit the employee who has made the application under S. 42(4) to appear], but this power is subject to the proviso, namely, that no one will be allowed to appear if the representative union has made an appearance. It will be seen that the proviso puts the representative union in a special position out of the six classes mentioned as representatives of employees in S. 30. Thus S. 32 makes it clear that where the representative union, out of the six classes in S. 30, appears, no one else can appear, including the person who might have made an application under S. 42(4). If the other five classes which are mentioned in S. 30 as representatives of employees appear, the authorities have the power to allow the employee or any other person to appear along with them.Then we come to S. 33, which starts with a non obstante clause and deals with the appearance of an employee or a representative union through any person. Section 33 thus is an exception to S. 27A and authorizes an employee who could not appear in any proceeding under the Act except through the representative of employees under S. 27A, to appear through any person in certain proceedings mentioned in S. 33, but this again is subject to two provisos, with the first of which we are not concerned here. The second proviso lays down that no employee shall be entitled to appear through any person in any proceeding under the Act in which the representative union has appeared as the representative of employees. This proviso again gives a special Position to the representative union out of the six classes of representatives of employees provided in S. 30 and makes it clear that though an employee may appear in certain proceedings specified in S. 33 through any person in spite of S. 27A, he cannot do so where a representative union has appeared as the representative of employees. Here again the position is the same as in S. 32; if a representative of employees other than a representative union has appeared in the proceeding, the employee can also appear through any person in the Proceedings mentioned in S. 33; but he cannot do so where the representative of employees which has appeared even in proceedings under S. 33 is the representative union. The result therefore of taking Ss. 27A, 32 and 33 together is that S. 27A first places a complete ban on the appearance of an employee in any proceedings under the Act once it has commenced except through the representative of employees. But there are two exceptions to this ban contained in Ss. 32 and 33. Section 32 is concerned with all proceedings before the authorities and gives power to the authorities under the Act to permit an employee himself to appear even though a representative of employees may have appeared but this permission cannot be granted where the representative union has appeared as a representative of employees. Section 33 which is the other exception allows an employee to appear through any person in certain proceedings only even though a representative of employees might have appeared; but here again it is subject to this that no one else, not even the employee who might have made the application, will have the right to appear if a representative union has put in appearance as the representative of employees.It is quite clear therefore that the scheme of the Act is that where a representative union appears in any proceeding under the Act, no one else can be allowed to appear, not even the employee at whose instance the proceedings might have began under S. 42(4). But where the appearance is by any representative of employees other than a representative union, the authorities under S. 32 can permit the employee to appear himself in all proceedings before them and further the employee is entitled to appear by any person in certain proceedings specified in S. 33. But whenever the representative union has made an appearance, even the employee cannot appear in any proceeding under the Act and the representation must be confined only to the representative union. The complete ban therefore laid by S. 27A on representation otherwise than through a representative of employees remains complete where the representative of employees to the representative union that has appeared; but if the representative of employees that has appeared to other than the representative union, then Ss. 32 and 33 provide for exceptions with which we have already dealt.
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### Explanation:
application under S. 42(4) but where the representative union does not choose to appear, there are provisions in Ss. 32 and 33 which permit others to appear in proceedings under the Act. Section 32 gives power to a conciliator, a board, a wage board, a labour court and the industrial court to permit an individual, whether an employee or not, to appear in any proceeding before him or it. This shows that the complete ban imposed by S.27A can be removed if the authorities under the Act think it expedient to permit another person to appear and that person may be an employee or not. Thus the employee who has made an application under S. 42(4) may be permitted to appear before the authorities under the Act; but this provision is subject to a proviso, namely, that no such individual which would include an employee who has himself made an application under S. 42(4), shall be permitted to appear in any proceeding in which the representative union has appeared as the representative of employees. Reading therefore Ss. 27A, 30 and 32 together, it is clear that no one else can appear in any proceeding under the Act except a representative of employees; but the authorities are empowered to permit anyone to appear whether he be an employee or not, if they consider it expedient for the ends of justice [and we have no doubt that where representative of employees does not choose to appear, the authorities will generally permit the employee who has made the application under S. 42(4) to appear], but this power is subject to the proviso, namely, that no one will be allowed to appear if the representative union has made an appearance. It will be seen that the proviso puts the representative union in a special position out of the six classes mentioned as representatives of employees in S. 30. Thus S. 32 makes it clear that where the representative union, out of the six classes in S. 30, appears, no one else can appear, including the person who might have made an application under S. 42(4). If the other five classes which are mentioned in S. 30 as representatives of employees appear, the authorities have the power to allow the employee or any other person to appear along with them.Then we come to S. 33, which starts with a non obstante clause and deals with the appearance of an employee or a representative union through any person. Section 33 thus is an exception to S. 27A and authorizes an employee who could not appear in any proceeding under the Act except through the representative of employees under S. 27A, to appear through any person in certain proceedings mentioned in S. 33, but this again is subject to two provisos, with the first of which we are not concerned here. The second proviso lays down that no employee shall be entitled to appear through any person in any proceeding under the Act in which the representative union has appeared as the representative of employees. This proviso again gives a special Position to the representative union out of the six classes of representatives of employees provided in S. 30 and makes it clear that though an employee may appear in certain proceedings specified in S. 33 through any person in spite of S. 27A, he cannot do so where a representative union has appeared as the representative of employees. Here again the position is the same as in S. 32; if a representative of employees other than a representative union has appeared in the proceeding, the employee can also appear through any person in the Proceedings mentioned in S. 33; but he cannot do so where the representative of employees which has appeared even in proceedings under S. 33 is the representative union. The result therefore of taking Ss. 27A, 32 and 33 together is that S. 27A first places a complete ban on the appearance of an employee in any proceedings under the Act once it has commenced except through the representative of employees. But there are two exceptions to this ban contained in Ss. 32 and 33. Section 32 is concerned with all proceedings before the authorities and gives power to the authorities under the Act to permit an employee himself to appear even though a representative of employees may have appeared but this permission cannot be granted where the representative union has appeared as a representative of employees. Section 33 which is the other exception allows an employee to appear through any person in certain proceedings only even though a representative of employees might have appeared; but here again it is subject to this that no one else, not even the employee who might have made the application, will have the right to appear if a representative union has put in appearance as the representative of employees.It is quite clear therefore that the scheme of the Act is that where a representative union appears in any proceeding under the Act, no one else can be allowed to appear, not even the employee at whose instance the proceedings might have began under S. 42(4). But where the appearance is by any representative of employees other than a representative union, the authorities under S. 32 can permit the employee to appear himself in all proceedings before them and further the employee is entitled to appear by any person in certain proceedings specified in S. 33. But whenever the representative union has made an appearance, even the employee cannot appear in any proceeding under the Act and the representation must be confined only to the representative union. The complete ban therefore laid by S. 27A on representation otherwise than through a representative of employees remains complete where the representative of employees to the representative union that has appeared; but if the representative of employees that has appeared to other than the representative union, then Ss. 32 and 33 provide for exceptions with which we have already dealt.
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Rupajan Begum Vs. Union of India & Others | at Serial No.13 of the said list had come into existence.12. A set of modalities for preparation of the NRC was formulated by the State Government through a Cabinet sub-committee. The sub-committee which was initially constituted on 3rd August, 2010 had been reconstituted from time to time. The modalities were discussed after several rounds of deliberations with various stakeholders including All Assam Students Union ("AASU") and 26 Ethnic Unions as well as All Assam Minorities Students Union ("AAMSU"). The list of documents were part of the aforesaid modalities which after being finalized by the State Government were sent to the Government of India on 5th July, 2013. The approval of the Union Government of the said modalities was communicated by a letter dated 22nd November, 2014 of the Union Home Secretary addressed to the Chief Secretary of the Government of Assam. After the aforesaid approval of the Union Home Secretary, the State Coordinator (NRC) informed the Registrar General of India of the decision of the Union Government and sought instructions of the said Authority, i.e., R.G.I. with regard to issuance of such certificates. This was communicated by a letter dated 9th April, 2015 of the State Coordinator. In response to the said letter, the R.G.I. by communication dated 5th May, 2015 approved the format of the certificate(s) to be issued by the G.P. Secretary/Executive Magistrate. Thereafter, the State Coordinator by a communication issued on the same day i.e. 5th May, 2015 informed all the Deputy Commissioners of the States of the decision of the R.G.I. and the approval of the format of the certificates that are to be issued by a G.P. Secretary in rural areas and Executive Magistrate in the urban areas for married women migrating to a new place on account of marriage. The required protocol to be followed in issuing such certificates was also communicated by the said letter of the Coordinator dated 5th May, 2015.13. From the above it would appear that the list of illustrative documents including the G.P. Secretary certificate were agreed to by all stakeholders in the process of updation of the NRC and the same also had the approval of the Union Government as well as the State Government pursuant to which instructions were issued to the district level officers in the matter of issuance of such certificate in tune with the required protocol.14. The exercise in question was undertaken by the High Court to consider an issue not strictly arising in the proceedings before it. Resolution of the issue was not indispensable for answering the writ petitions under consideration of the High Court. The issue had the potential of affecting the large number of citizens who were not before the High Court. No notice under the provisions of Order I rule 8 of the Code of Civil Procedure, 1908 was also issued to enable the persons likely to be affected to contest the matter in a representative capacity. Though, the order of the High Court insofar as the issue of the validity of the certificate is liable to be interdicted on the above basis alone, we are of the view that we should proceed further in the matter and record our views on the issue of validity of the certificate in question to dispel all doubts in the matter and to avoid any further litigation on the issue.15. The certificate issued by the G.P. Secretary merely acknowledges the shifting of residence of a married woman from one village to another. The said certificate by itself and by no means establishes any claim of citizenship of the holder of the certificate. This is made clear in the illustrative list of documents itself by specifying the same to be only a supporting document. The certificate in question only enables its holder to establish a link between the holder and the person from whom legacy is claimed. It has been made clear in the several reports of the learned State Coordinator, NRC, Assam that a claim accompanied by such a certificate, without details of the legacy person, is to be discarded and in the event information as to the legacy person has been furnished, the certificate in question is to be used for the limited purpose of providing a linkage after due enquiry and verification.16. The certificate issued by the G.P. Secretary, by no means, is proof of citizenship. Such proof will come only if the link between the claimant and the legacy person (who has to be a citizen) is established. The certificate has to be verified at two stages. The first is the authenticity of the certificate itself; and the second is the authenticity of the contents thereof. The latter process of verification is bound to be an exhaustive process in the course of which the source of information of the facts and all other details recorded in the certificate will be ascertained after giving an opportunity to the holder of the certificate. If the document and its contents is to be subjected to a thorough search and probe we do not see why the said certificate should have been interdicted by the High Court, particularly, in the context of the facts surrounding the enumeration and inclusion of the documents mentioned in the illustrative list of documents, as noticed above. In fact, the said list of illustrative documents was also laid before this Court in the course of the proceedings held from time to time and this Court was aware of the nature and effect of each of the documents mentioned in the list.17. The above apart, from a conjoint reading of the provisions of the Assam Panchayat Act, 1994 i.e. Sections 19(1) (vi), 21 and 122, it would appear that directions for issuance of such certificate can come within the ambit of the jurisdiction of the authorities under the Act in which event the view taken by the High Court and the contentions advanced on behalf of the State that the said document is a private document would be legally fragile. | 1[ds]8. A reading of the order of the High Court would go to show that according to the High Court the document in question was a means to facilitate a claim for inclusion in the NRC by reference to a document which is post 24th March, 1971 i.e. cut off date on the basis of which citizenship under Section 6A of the Citizenship Act, 1955 is required to be determined. The High Court took the view that all the other documents listed in the illustrative list of documents admissible are prior to the cut off date and, therefore, there cannot be any special reason for inclusion of the said document i.e. contemporaneous G.P. Secretary certificate in the said list, even as a supporting document.The High Court also took the view that under the provisions of the Assam Panchayat Act, 1994 issuance of such certificate is not contemplated and/or authorized. Referring to the provisions of the Indian Evidence Act, 1872 the High Court was also of the opinion that as the said certificate is not issued by the G.P. Secretary on the basis of any official records, the same is not a public document and, in fact, the said certificate partakes the character of a private document issued by the G.P. Secretary. The evidentiary value of the same, therefore, is open to serious doubt. It is on the aforesaid broad basis that the High Court thought it proper to invalidate the certificate in question.10. The invalidation of the certificate which was an agreed document in the matter of processing of claims for inclusion in the updated NRC undoubtedly has the effect of affecting a large number of claimants who may have filed their applications for inclusion in thethe aforesaid approval of the Union Home Secretary, the State Coordinator (NRC) informed the Registrar General of India of the decision of the Union Government and sought instructions of the said Authority, i.e., R.G.I. with regard to issuance of such certificates. This was communicated by a letter dated 9th April, 2015 of the State Coordinator. In response to the said letter, the R.G.I. by communication dated 5th May, 2015 approved the format of the certificate(s) to be issued by the G.P. Secretary/Executive Magistrate. Thereafter, the State Coordinator by a communication issued on the same day i.e. 5th May, 2015 informed all the Deputy Commissioners of the States of the decision of the R.G.I. and the approval of the format of the certificates that are to be issued by a G.P. Secretary in rural areas and Executive Magistrate in the urban areas for married women migrating to a new place on account of marriage. The required protocol to be followed in issuing such certificates was also communicated by the said letter of the Coordinator dated 5th May, 2015.13. From the above it would appear that the list of illustrative documents including the G.P. Secretary certificate were agreed to by all stakeholders in the process of updation of the NRC and the same also had the approval of the Union Government as well as the State Government pursuant to which instructions were issued to the district level officers in the matter of issuance of such certificate in tune with the requiredthe order of the High Court insofar as the issue of the validity of the certificate is liable to be interdicted on the above basis alone, we are of the view that we should proceed further in the matter and record our views on the issue of validity of the certificate in question to dispel all doubts in the matter and to avoid any further litigation on the issue.15. The certificate issued by the G.P. Secretary merely acknowledges the shifting of residence of a married woman from one village to another. The said certificate by itself and by no means establishes any claim of citizenship of the holder of the certificate. This is made clear in the illustrative list of documents itself by specifying the same to be only a supporting document. The certificate in question only enables its holder to establish a link between the holder and the person from whom legacy is claimed. It has been made clear in the several reports of the learned State Coordinator, NRC, Assam that a claim accompanied by such a certificate, without details of the legacy person, is to be discarded and in the event information as to the legacy person has been furnished, the certificate in question is to be used for the limited purpose of providing a linkage after due enquiry and verification.The above apart, from a conjoint reading of the provisions of the Assam Panchayat Act, 1994 i.e. Sections 19(1) (vi), 21 and 122, it would appear that directions for issuance of such certificate can come within the ambit of the jurisdiction of the authorities under the Act in which event the view taken by the High Court and the contentions advanced on behalf of the State that the said document is a private document would be legally fragile. | 1 | 2,083 | 911 | ### Instruction:
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at Serial No.13 of the said list had come into existence.12. A set of modalities for preparation of the NRC was formulated by the State Government through a Cabinet sub-committee. The sub-committee which was initially constituted on 3rd August, 2010 had been reconstituted from time to time. The modalities were discussed after several rounds of deliberations with various stakeholders including All Assam Students Union ("AASU") and 26 Ethnic Unions as well as All Assam Minorities Students Union ("AAMSU"). The list of documents were part of the aforesaid modalities which after being finalized by the State Government were sent to the Government of India on 5th July, 2013. The approval of the Union Government of the said modalities was communicated by a letter dated 22nd November, 2014 of the Union Home Secretary addressed to the Chief Secretary of the Government of Assam. After the aforesaid approval of the Union Home Secretary, the State Coordinator (NRC) informed the Registrar General of India of the decision of the Union Government and sought instructions of the said Authority, i.e., R.G.I. with regard to issuance of such certificates. This was communicated by a letter dated 9th April, 2015 of the State Coordinator. In response to the said letter, the R.G.I. by communication dated 5th May, 2015 approved the format of the certificate(s) to be issued by the G.P. Secretary/Executive Magistrate. Thereafter, the State Coordinator by a communication issued on the same day i.e. 5th May, 2015 informed all the Deputy Commissioners of the States of the decision of the R.G.I. and the approval of the format of the certificates that are to be issued by a G.P. Secretary in rural areas and Executive Magistrate in the urban areas for married women migrating to a new place on account of marriage. The required protocol to be followed in issuing such certificates was also communicated by the said letter of the Coordinator dated 5th May, 2015.13. From the above it would appear that the list of illustrative documents including the G.P. Secretary certificate were agreed to by all stakeholders in the process of updation of the NRC and the same also had the approval of the Union Government as well as the State Government pursuant to which instructions were issued to the district level officers in the matter of issuance of such certificate in tune with the required protocol.14. The exercise in question was undertaken by the High Court to consider an issue not strictly arising in the proceedings before it. Resolution of the issue was not indispensable for answering the writ petitions under consideration of the High Court. The issue had the potential of affecting the large number of citizens who were not before the High Court. No notice under the provisions of Order I rule 8 of the Code of Civil Procedure, 1908 was also issued to enable the persons likely to be affected to contest the matter in a representative capacity. Though, the order of the High Court insofar as the issue of the validity of the certificate is liable to be interdicted on the above basis alone, we are of the view that we should proceed further in the matter and record our views on the issue of validity of the certificate in question to dispel all doubts in the matter and to avoid any further litigation on the issue.15. The certificate issued by the G.P. Secretary merely acknowledges the shifting of residence of a married woman from one village to another. The said certificate by itself and by no means establishes any claim of citizenship of the holder of the certificate. This is made clear in the illustrative list of documents itself by specifying the same to be only a supporting document. The certificate in question only enables its holder to establish a link between the holder and the person from whom legacy is claimed. It has been made clear in the several reports of the learned State Coordinator, NRC, Assam that a claim accompanied by such a certificate, without details of the legacy person, is to be discarded and in the event information as to the legacy person has been furnished, the certificate in question is to be used for the limited purpose of providing a linkage after due enquiry and verification.16. The certificate issued by the G.P. Secretary, by no means, is proof of citizenship. Such proof will come only if the link between the claimant and the legacy person (who has to be a citizen) is established. The certificate has to be verified at two stages. The first is the authenticity of the certificate itself; and the second is the authenticity of the contents thereof. The latter process of verification is bound to be an exhaustive process in the course of which the source of information of the facts and all other details recorded in the certificate will be ascertained after giving an opportunity to the holder of the certificate. If the document and its contents is to be subjected to a thorough search and probe we do not see why the said certificate should have been interdicted by the High Court, particularly, in the context of the facts surrounding the enumeration and inclusion of the documents mentioned in the illustrative list of documents, as noticed above. In fact, the said list of illustrative documents was also laid before this Court in the course of the proceedings held from time to time and this Court was aware of the nature and effect of each of the documents mentioned in the list.17. The above apart, from a conjoint reading of the provisions of the Assam Panchayat Act, 1994 i.e. Sections 19(1) (vi), 21 and 122, it would appear that directions for issuance of such certificate can come within the ambit of the jurisdiction of the authorities under the Act in which event the view taken by the High Court and the contentions advanced on behalf of the State that the said document is a private document would be legally fragile.
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8. A reading of the order of the High Court would go to show that according to the High Court the document in question was a means to facilitate a claim for inclusion in the NRC by reference to a document which is post 24th March, 1971 i.e. cut off date on the basis of which citizenship under Section 6A of the Citizenship Act, 1955 is required to be determined. The High Court took the view that all the other documents listed in the illustrative list of documents admissible are prior to the cut off date and, therefore, there cannot be any special reason for inclusion of the said document i.e. contemporaneous G.P. Secretary certificate in the said list, even as a supporting document.The High Court also took the view that under the provisions of the Assam Panchayat Act, 1994 issuance of such certificate is not contemplated and/or authorized. Referring to the provisions of the Indian Evidence Act, 1872 the High Court was also of the opinion that as the said certificate is not issued by the G.P. Secretary on the basis of any official records, the same is not a public document and, in fact, the said certificate partakes the character of a private document issued by the G.P. Secretary. The evidentiary value of the same, therefore, is open to serious doubt. It is on the aforesaid broad basis that the High Court thought it proper to invalidate the certificate in question.10. The invalidation of the certificate which was an agreed document in the matter of processing of claims for inclusion in the updated NRC undoubtedly has the effect of affecting a large number of claimants who may have filed their applications for inclusion in thethe aforesaid approval of the Union Home Secretary, the State Coordinator (NRC) informed the Registrar General of India of the decision of the Union Government and sought instructions of the said Authority, i.e., R.G.I. with regard to issuance of such certificates. This was communicated by a letter dated 9th April, 2015 of the State Coordinator. In response to the said letter, the R.G.I. by communication dated 5th May, 2015 approved the format of the certificate(s) to be issued by the G.P. Secretary/Executive Magistrate. Thereafter, the State Coordinator by a communication issued on the same day i.e. 5th May, 2015 informed all the Deputy Commissioners of the States of the decision of the R.G.I. and the approval of the format of the certificates that are to be issued by a G.P. Secretary in rural areas and Executive Magistrate in the urban areas for married women migrating to a new place on account of marriage. The required protocol to be followed in issuing such certificates was also communicated by the said letter of the Coordinator dated 5th May, 2015.13. From the above it would appear that the list of illustrative documents including the G.P. Secretary certificate were agreed to by all stakeholders in the process of updation of the NRC and the same also had the approval of the Union Government as well as the State Government pursuant to which instructions were issued to the district level officers in the matter of issuance of such certificate in tune with the requiredthe order of the High Court insofar as the issue of the validity of the certificate is liable to be interdicted on the above basis alone, we are of the view that we should proceed further in the matter and record our views on the issue of validity of the certificate in question to dispel all doubts in the matter and to avoid any further litigation on the issue.15. The certificate issued by the G.P. Secretary merely acknowledges the shifting of residence of a married woman from one village to another. The said certificate by itself and by no means establishes any claim of citizenship of the holder of the certificate. This is made clear in the illustrative list of documents itself by specifying the same to be only a supporting document. The certificate in question only enables its holder to establish a link between the holder and the person from whom legacy is claimed. It has been made clear in the several reports of the learned State Coordinator, NRC, Assam that a claim accompanied by such a certificate, without details of the legacy person, is to be discarded and in the event information as to the legacy person has been furnished, the certificate in question is to be used for the limited purpose of providing a linkage after due enquiry and verification.The above apart, from a conjoint reading of the provisions of the Assam Panchayat Act, 1994 i.e. Sections 19(1) (vi), 21 and 122, it would appear that directions for issuance of such certificate can come within the ambit of the jurisdiction of the authorities under the Act in which event the view taken by the High Court and the contentions advanced on behalf of the State that the said document is a private document would be legally fragile.
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VASANT CHEMICALS LTD Vs. HYDERABAD METROPOLITAN WATER SUPPLY AND SEWERAGE BOARD THE MANAGING DIRECTOR | not found to be consistent with the prescribed parameters;4. In terms of Clause 28, an amount of rupees one lakh per month is to be paid by JETL towards maintenance of the sewer line. Additionally, JETL has to pay sewerage maintenance and sewerage treatment charges @ Rs.6 per thousand litres of treated effluents;5. Further, as per Clause 29, a surcharge was also levied on JETL for permitting industrial effluents beyond the limits prescribed on two important parameters viz. Chemical Oxygen Demand (COD) and T otal Dissolved Solids (TDS); Each parameter/COD and TDS will be considered independent for levy the surcharge. 36. In terms of Rule 4 of Sewerage Rules, the Board shall charge on the applicants seeking to discharge the trade or industrial effluents etc. Rule 4 reads as under:- “Sewerage and Industrial Effluents- 4. The Board shall charge on applicants seeking to discharge their trade or industrial effluents, sullage drain, sewer (other than storm sewer or combined sewer) of a private party, State Government, Central Government, or local body or local authority, into Board sewers, towards the special treatment cost of such sewage and the charges shall be as fixed by the Board from time to time, depending upon the nature of such sewage and cost of treatment involved to bring the same within tolerance limits of effluent standards etc. The installation and maintenance of required meters for measuring the volume of effluents shall be insisted at the cost of the applicants, by the board.” Subject to the provisions of Water Act, 1974 and Environment Act, 1986 and subject to the restrictions of Section 54 of HMWS&S Act and in terms of Rule 4 and other terms and conditions, Board has the right to permit the ‘applicants’ seeking to discharge their trade or industrial effluents into the Board’s sewer system and Sewerage Treatment Plant subject to the imposition of costs. The treatment for letting the trade or industrial effluents into the Board’s sewer shall be subject to such terms and conditions and in such form of agreement as may be prescribed in the regulations made by the Board in accordance with these rules. Having entered into the agreement with the Board on 31.08.2000 and on prior dates, JETL cannot turn around and challenge the terms and conditions imposed upon it by virtue of the agreement.37. So far as the various payments made by JETL to the Board, levy is in terms of Rule 4 of the Sewerage Rules and as per the contract and is purely contractual between JETL and the respondent Board for letting partially treated the industrial effluents of the appellant and other units into the Board’s sewer. Likewise, charges paid by JETL to the Board cannot be said to be in lieu of the sewerage cess that the appellant unit is liable to pay which is a statutory liability. It is pertinent to note that many industries about fifty units, apart from the appellant unit, discharge their effluents to the CETP/JETL. The agreement dated 31.08.2000 and the earlier agreements between JETL and the Board are purely contractual consciously entered into between the parties.38. JETL lets partially treated effluents into the Board’s sewerage system for further treatment. As discussed earlier, for further treatment of sewerage, the effluents are to be taken to Sewerage Treatment Plant (STP) at Amberpet which is situated at the distance of 08.30 kilometres from Balanagar. It requires huge amount for transmission of the effluents to Board’s sewer system at Amberpet where the Board brings down the industrial effluents to tolerance limits. As pointed out earlier, the treatment of industrial effluents requires high demand of energy, personnel to operate the system and skilled workers for maintenance of the plant. Unless the Board collects sewerage charge/sewerage surcharge, the Board cannot meet the heavy expenditure on the operation and maintenance of sewerage system. Various other members of JETL who discharge sewage into JETL which is ultimately let into Board sewer line, may or may not be consumers of water supply by the Board. That apart, members of JETL may have their own source of water supply or they may supplement the supply of water from the Board through different sources either by extraction of ground water or supply through tankers which cannot be quantified by the Board. In pursuance of the provisions of the HMWS&S Act and the Sewerage Rules and pursuant to the agreement dated 31.08.2000, the charges are levied on JETL who in turn collects the charges from its member industrial units who discharge their effluents into JETL. Therefore, the payments made by JETL to the Board and the charges in turn collected by JETL from the appellant and other member units, cannot absolve the appellant unit from its statutory liability to pay the sewerage cess. We find no merit in the contention that there is double levy of sewerage cess.39. Levy of sewerage cess being a statutory levy in terms of Section 55 of HMWS&S Act and Clause 16 of the agreement which incorporates the statutory levy under Section 55 of HMWS&S Act, the learned Single Judge and the Division Bench rightly recorded concurrent findings upholding the levy. Observing that the appellant being occupier of the premises, though not directly connected to the sewer line of the Board, is ultimately letting into the sewerage system of the Board after partial treatment at JETL, the High Court was right in holding that the levy of sewerage cess is in accordance with Section 55 of HMWS&S Act. The payment of sewerage surcharges and the other charges by JETL cannot take away the statutory liability of sewerage cess levied on the occupier of the premises who consumes water and lets out the sewage into the Board sewer system. The payment of sewerage surcharge and other charges by JETL to the respondent-Board will not amount to double levy and the High Court rightly dismissed the writ petitions and also the review petitions filed by the appellant. The impugned order does not suffer from any infirmity warranting interference. | 0[ds]Admittedly, JETL is neither a consumer of bulk water supply nor generating any sewage/industrial effluents of its own. The effluents of the appellant industry are not of acceptable standards for transmissionsystem of theBoard. Before the effluents of the appellant industry are to be let into the sewer line of the Board, the appellant industry has to get the effluents treated at its own cost to bring the quality of the effluents to an acceptable level. After getting partial treatment from JETL, the effluents are let into the said dedicated pipeline which belongs to the Board at Kukutpally/Balanagar and then they are let into 1000 mm diameter sewage trunk belonging to the Board through which the effluents are carried to Sewerage Treatment Plant (STP) at Amberpet measuring a distance of 18.90 kilo meters. The length of the pipeline from JETL to Amberpet is 29.28 kilo meters. Though theunit is not directly connected with the Board sewer line, the industrial effluents of the appellant unit partially treated at JETL are ultimately let into the Board sewer line which is finally carried to STP at Amberpet. In the light of this admitted factual position, the appellant is liable to pay sewerage cess under Section 55 of the Act. Proviso to Section 55 of the Act contemplates that the sewerage cess shall not be levied on the occupier of the premises if such premises is stated to be in an area which is not served by the seweragesystem of theBoard. The proviso implies that the occupier of such premises cannot use the Board sewer by any means whatsoever. Therefore, the contention of the appellant that it is not liable to pay sewerage cess to the Board as it is not directly letting out sewage effluents into the sewage line of the Board and that it is carrying its effluents in the tanker, lorries and letting out in the effluent treatment plant of JETL and thus not connected with the sewagesystem of theBoard, in our view, is wholly untenable. Since the sewage of the appellant is ultimately let into the sewer line of the Board, the appellant cannot contend that it is not covered under Section 55 of the Act and that it is covered under proviso to Section 55 of theagreement between the appellant and JETL for partial treatment ofindustrial effluents is the internal contractual agreement between JETL and the appellant. The appellant unit is to treat and process the industrial effluents and bring them down to permissible standard limits in accordance with the provisions of Water Act, 1974 and Environment Act, 1986 relating to discharge and disposal of industrial effluents and other objectionable effluents into sewers before discharging of the effluents into the Board sewer. The treated effluents should also have to conform to the IS specification laid down from time to time for disposal of effluent into the domestic sewer of the Board.discharge their contractual obligation in bringing the industrial effluents to permissible standard limits, the appellant unit entered into an agreement dated 22.01.1996 with JETL engaging it to treat its industrial effluents in accordance with the environmental laws in force. The appellant instead of treating the effluents at its premises at its own cost engaged JETL for treating its effluents. Thus, for its convenience, the appellant unit has entered into an agreement with JETL for treating its effluents and the charges paid by them to JETL are towards the treatment of effluents and bring it to permissible standards. Therefore, the function of JETL is that of an intermediary with whose assistance, the appellant is discharging its statutory obligation.24. Admittedly, theindustrial effluents are carried to JETL in closed tankers and after partial treatment at JETL, let into thesewer line. Admittedly, the effluents of theunit are not of acceptable standards for transmission through the sewer line of the Board and therefore, theindustry and other industries have to get the effluents treated at their own cost to bring the quality of the effluents to an acceptable level by treating the same to some extent. The sewerage cess of 35% levied by the Board is for carrying the sewerage of acceptable quality through its sewer line and further treating it at STP at Amberpet.25. The sewerage cess aims to recover the cost of treating the effluents of strength stronger than domestic sewage and to make the effluents of acceptable quality. In addition to partial treatment at JETL, the effluents require further treatment and their transmission to Sewer Treatment Plant (STP) at Amberpet situated at 18.90 kms from Bala Nagar which requires huge finance. The maintenance of sewer line is highly essential for proper transmission of the effluents from JETL tosewer system at Amperpet where the Board brings down the industrial effluents to the tolerance limits. It requires huge amount to maintain the STP treatment of industrial effluents. Further, it requires high demand of energy, STP personnel to operate and maintain the system, skilled and unskilled workers for proper maintenance of the plant. The respondent-Board unless it collects sewerage cess and other charges cannot meet the heavy expenditure on the operation and maintenance of sewerage system. The liability of the appellant to pay sewerage cess to the Board arises from the Statute and also by way of an agreement which was agreed upon by the appellant. There is no merit in the contention of the appellant unit that its liability has ended upon transferring the industrial effluents to the respondent-JETL and that it is not connected to thesewer line. As discussed earlier, the partially treated effluents of theunit are ultimately let into the sewer line provided by the Board which is being carried to Amberpet STP for further treatment and discharge. After partial treatment at JETL, wheneffluents are let into thesewage system, the appellant is not justified in contending that it is not connected to the sewer line of the Board and hence, covered under the proviso to Section 55 of the Act.26. It is well-settled that the normal function of a proviso is to except something out of the enactment.30. As rightly contended by learned senior counsel for the respondent-Board, the plea of double payment of sewerage cess was never raised in the writ petition filed by the appellant; but it was raised by way of oral submission before the High Court and thereafter, by way of review petition. The plea of double levy was rightly rejected by the High Court inter alia holding thatassuming for a moment that the petitioner-company is paying some amounts to the JETL, it cannot be said that it is towards sewerage. As pointed out by the learned senior counsel for the respondent-Board, JETL never sought to implead itself as a party respondent in the writ petition filed by the Board. It is also pertinent to point out that one Mr. G.K.B. Chowdary who was then the Managing Director of the appellant-group of companies, was also the Managing Director of JETL. It passescomprehension as to why JETL whose Managing Director is the same as the Managing Director of the appellant Group of Companies had not taken any step to get themselves impleaded in the writ petition before the High Court and raise the plea of double taxation.Insofar as the charges paid by the appellant to JETL for the treatment and processing of its effluents, it is purely contractual pursuant to the agreement entered into between the appellant unit and JETL dated 01.04.2000 and the earlier agreement dated 22.01.1996. As pointed out earlier, the appellant unit is obligated to treat and process the industrial effluents and bring them down to permissible standard limits in accordance with the provisions of the Water Act, 1974 and Environment Act, 1986 before they are let into the sewer line of the Board.discharge its statutory as well as contractual obligation, the appellant unit has entered into agreement with JETL for the treatment and processing ofeffluents before being let intosewer line. Payment of charges by the appellant to JETL is purely contractual between the parties and the same cannot be considered to be in deference to the statutory cess/statutory charge which can only be levied by the Board. In this regard, the High Court has rightly observed that assuming that the appellant is paying some amount to JETL, the same cannot be termed ast to the provisions of Water Act, 1974 and Environment Act, 1986 and subject to the restrictions of Section 54 of HMWS&S Act and in terms of Rule 4 and other terms and conditions, Board has the right to permit theseeking to discharge their trade or industrial effluents into thesewer system and Sewerage Treatment Plant subject to the imposition of costs. The treatment for letting the trade or industrial effluents into thesewer shall be subject to such terms and conditions and in such form of agreement as may be prescribed in the regulations made by the Board in accordance with these rules. Having entered into the agreement with the Board on 31.08.2000 and on prior dates, JETL cannot turn around and challenge the terms and conditions imposed upon it by virtue of the agreement.37. So far as the various payments made by JETL to the Board, levy is in terms of Rule 4 of the Sewerage Rules and as per the contract and is purely contractual between JETL and the respondent Board for letting partially treated the industrial effluents of the appellant and other units into thesewer. Likewise, charges paid by JETL to the Board cannot be said to be in lieu of the sewerage cess that the appellant unit is liable to pay which is a statutory liability. It is pertinent to note that many industries about fifty units, apart from the appellant unit, discharge their effluents to the CETP/JETL. The agreement dated 31.08.2000 and the earlier agreements between JETL and the Board are purely contractual consciously entered into between the parties.38. JETL lets partially treated effluents into thesewerage system for further treatment. As discussed earlier, for further treatment of sewerage, the effluents are to be taken to Sewerage Treatment Plant (STP) at Amberpet which is situated at the distance of 08.30 kilometres from Balanagar. It requires huge amount for transmission of the effluents tosewer system at Amberpet where the Board brings down the industrial effluents to tolerance limits. As pointed out earlier, the treatment of industrial effluents requires high demand of energy, personnel to operate the system and skilled workers for maintenance of the plant. Unless the Board collects sewerage charge/sewerage surcharge, the Board cannot meet the heavy expenditure on the operation and maintenance of sewerage system. Various other members of JETL who discharge sewage into JETL which is ultimately let into Board sewer line, may or may not be consumers of water supply by the Board. That apart, members of JETL may have their own source of water supply or they may supplement the supply of water from the Board through different sources either by extraction of ground water or supply through tankers which cannot be quantified by the Board. In pursuance of the provisions of the HMWS&S Act and the Sewerage Rules and pursuant to the agreement dated 31.08.2000, the charges are levied on JETL who in turn collects the charges from its member industrial units who discharge their effluents into JETL. Therefore, the payments made by JETL to the Board and the charges in turn collected by JETL from the appellant and other member units, cannot absolve the appellant unit from its statutory liability to pay the sewerage cess. We find no merit in the contention that there is double levy of sewerage cess.39. Levy of sewerage cess being a statutory levy in terms of Section 55 of HMWS&S Act and Clause 16 of the agreement which incorporates the statutory levy under Section 55 of HMWS&S Act, the learned Single Judge and the Division Bench rightly recorded concurrent findings upholding the levy. Observing that the appellant being occupier of the premises, though not directly connected to the sewer line of the Board, is ultimately letting into the seweragesystem of theBoard after partial treatment at JETL, the High Court was right in holding that the levy of sewerage cess is in accordance with Section 55 of HMWS&S Act. The payment of sewerage surcharges and the other charges by JETL cannot take away the statutory liability of sewerage cess levied on the occupier of the premises who consumes water and lets out the sewage into the Board sewer system. The payment of sewerage surcharge and other charges by JETL to the respondent-Board will not amount to double levy and the High Court rightly dismissed the writ petitions and also the review petitions filed by the appellant. The impugned order does not suffer from any infirmity warranting interference. | 0 | 8,719 | 2,273 | ### Instruction:
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not found to be consistent with the prescribed parameters;4. In terms of Clause 28, an amount of rupees one lakh per month is to be paid by JETL towards maintenance of the sewer line. Additionally, JETL has to pay sewerage maintenance and sewerage treatment charges @ Rs.6 per thousand litres of treated effluents;5. Further, as per Clause 29, a surcharge was also levied on JETL for permitting industrial effluents beyond the limits prescribed on two important parameters viz. Chemical Oxygen Demand (COD) and T otal Dissolved Solids (TDS); Each parameter/COD and TDS will be considered independent for levy the surcharge. 36. In terms of Rule 4 of Sewerage Rules, the Board shall charge on the applicants seeking to discharge the trade or industrial effluents etc. Rule 4 reads as under:- “Sewerage and Industrial Effluents- 4. The Board shall charge on applicants seeking to discharge their trade or industrial effluents, sullage drain, sewer (other than storm sewer or combined sewer) of a private party, State Government, Central Government, or local body or local authority, into Board sewers, towards the special treatment cost of such sewage and the charges shall be as fixed by the Board from time to time, depending upon the nature of such sewage and cost of treatment involved to bring the same within tolerance limits of effluent standards etc. The installation and maintenance of required meters for measuring the volume of effluents shall be insisted at the cost of the applicants, by the board.” Subject to the provisions of Water Act, 1974 and Environment Act, 1986 and subject to the restrictions of Section 54 of HMWS&S Act and in terms of Rule 4 and other terms and conditions, Board has the right to permit the ‘applicants’ seeking to discharge their trade or industrial effluents into the Board’s sewer system and Sewerage Treatment Plant subject to the imposition of costs. The treatment for letting the trade or industrial effluents into the Board’s sewer shall be subject to such terms and conditions and in such form of agreement as may be prescribed in the regulations made by the Board in accordance with these rules. Having entered into the agreement with the Board on 31.08.2000 and on prior dates, JETL cannot turn around and challenge the terms and conditions imposed upon it by virtue of the agreement.37. So far as the various payments made by JETL to the Board, levy is in terms of Rule 4 of the Sewerage Rules and as per the contract and is purely contractual between JETL and the respondent Board for letting partially treated the industrial effluents of the appellant and other units into the Board’s sewer. Likewise, charges paid by JETL to the Board cannot be said to be in lieu of the sewerage cess that the appellant unit is liable to pay which is a statutory liability. It is pertinent to note that many industries about fifty units, apart from the appellant unit, discharge their effluents to the CETP/JETL. The agreement dated 31.08.2000 and the earlier agreements between JETL and the Board are purely contractual consciously entered into between the parties.38. JETL lets partially treated effluents into the Board’s sewerage system for further treatment. As discussed earlier, for further treatment of sewerage, the effluents are to be taken to Sewerage Treatment Plant (STP) at Amberpet which is situated at the distance of 08.30 kilometres from Balanagar. It requires huge amount for transmission of the effluents to Board’s sewer system at Amberpet where the Board brings down the industrial effluents to tolerance limits. As pointed out earlier, the treatment of industrial effluents requires high demand of energy, personnel to operate the system and skilled workers for maintenance of the plant. Unless the Board collects sewerage charge/sewerage surcharge, the Board cannot meet the heavy expenditure on the operation and maintenance of sewerage system. Various other members of JETL who discharge sewage into JETL which is ultimately let into Board sewer line, may or may not be consumers of water supply by the Board. That apart, members of JETL may have their own source of water supply or they may supplement the supply of water from the Board through different sources either by extraction of ground water or supply through tankers which cannot be quantified by the Board. In pursuance of the provisions of the HMWS&S Act and the Sewerage Rules and pursuant to the agreement dated 31.08.2000, the charges are levied on JETL who in turn collects the charges from its member industrial units who discharge their effluents into JETL. Therefore, the payments made by JETL to the Board and the charges in turn collected by JETL from the appellant and other member units, cannot absolve the appellant unit from its statutory liability to pay the sewerage cess. We find no merit in the contention that there is double levy of sewerage cess.39. Levy of sewerage cess being a statutory levy in terms of Section 55 of HMWS&S Act and Clause 16 of the agreement which incorporates the statutory levy under Section 55 of HMWS&S Act, the learned Single Judge and the Division Bench rightly recorded concurrent findings upholding the levy. Observing that the appellant being occupier of the premises, though not directly connected to the sewer line of the Board, is ultimately letting into the sewerage system of the Board after partial treatment at JETL, the High Court was right in holding that the levy of sewerage cess is in accordance with Section 55 of HMWS&S Act. The payment of sewerage surcharges and the other charges by JETL cannot take away the statutory liability of sewerage cess levied on the occupier of the premises who consumes water and lets out the sewage into the Board sewer system. The payment of sewerage surcharge and other charges by JETL to the respondent-Board will not amount to double levy and the High Court rightly dismissed the writ petitions and also the review petitions filed by the appellant. The impugned order does not suffer from any infirmity warranting interference.
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petition filed by the Board. It is also pertinent to point out that one Mr. G.K.B. Chowdary who was then the Managing Director of the appellant-group of companies, was also the Managing Director of JETL. It passescomprehension as to why JETL whose Managing Director is the same as the Managing Director of the appellant Group of Companies had not taken any step to get themselves impleaded in the writ petition before the High Court and raise the plea of double taxation.Insofar as the charges paid by the appellant to JETL for the treatment and processing of its effluents, it is purely contractual pursuant to the agreement entered into between the appellant unit and JETL dated 01.04.2000 and the earlier agreement dated 22.01.1996. As pointed out earlier, the appellant unit is obligated to treat and process the industrial effluents and bring them down to permissible standard limits in accordance with the provisions of the Water Act, 1974 and Environment Act, 1986 before they are let into the sewer line of the Board.discharge its statutory as well as contractual obligation, the appellant unit has entered into agreement with JETL for the treatment and processing ofeffluents before being let intosewer line. Payment of charges by the appellant to JETL is purely contractual between the parties and the same cannot be considered to be in deference to the statutory cess/statutory charge which can only be levied by the Board. In this regard, the High Court has rightly observed that assuming that the appellant is paying some amount to JETL, the same cannot be termed ast to the provisions of Water Act, 1974 and Environment Act, 1986 and subject to the restrictions of Section 54 of HMWS&S Act and in terms of Rule 4 and other terms and conditions, Board has the right to permit theseeking to discharge their trade or industrial effluents into thesewer system and Sewerage Treatment Plant subject to the imposition of costs. The treatment for letting the trade or industrial effluents into thesewer shall be subject to such terms and conditions and in such form of agreement as may be prescribed in the regulations made by the Board in accordance with these rules. Having entered into the agreement with the Board on 31.08.2000 and on prior dates, JETL cannot turn around and challenge the terms and conditions imposed upon it by virtue of the agreement.37. So far as the various payments made by JETL to the Board, levy is in terms of Rule 4 of the Sewerage Rules and as per the contract and is purely contractual between JETL and the respondent Board for letting partially treated the industrial effluents of the appellant and other units into thesewer. Likewise, charges paid by JETL to the Board cannot be said to be in lieu of the sewerage cess that the appellant unit is liable to pay which is a statutory liability. It is pertinent to note that many industries about fifty units, apart from the appellant unit, discharge their effluents to the CETP/JETL. The agreement dated 31.08.2000 and the earlier agreements between JETL and the Board are purely contractual consciously entered into between the parties.38. JETL lets partially treated effluents into thesewerage system for further treatment. As discussed earlier, for further treatment of sewerage, the effluents are to be taken to Sewerage Treatment Plant (STP) at Amberpet which is situated at the distance of 08.30 kilometres from Balanagar. It requires huge amount for transmission of the effluents tosewer system at Amberpet where the Board brings down the industrial effluents to tolerance limits. As pointed out earlier, the treatment of industrial effluents requires high demand of energy, personnel to operate the system and skilled workers for maintenance of the plant. Unless the Board collects sewerage charge/sewerage surcharge, the Board cannot meet the heavy expenditure on the operation and maintenance of sewerage system. Various other members of JETL who discharge sewage into JETL which is ultimately let into Board sewer line, may or may not be consumers of water supply by the Board. That apart, members of JETL may have their own source of water supply or they may supplement the supply of water from the Board through different sources either by extraction of ground water or supply through tankers which cannot be quantified by the Board. In pursuance of the provisions of the HMWS&S Act and the Sewerage Rules and pursuant to the agreement dated 31.08.2000, the charges are levied on JETL who in turn collects the charges from its member industrial units who discharge their effluents into JETL. Therefore, the payments made by JETL to the Board and the charges in turn collected by JETL from the appellant and other member units, cannot absolve the appellant unit from its statutory liability to pay the sewerage cess. We find no merit in the contention that there is double levy of sewerage cess.39. Levy of sewerage cess being a statutory levy in terms of Section 55 of HMWS&S Act and Clause 16 of the agreement which incorporates the statutory levy under Section 55 of HMWS&S Act, the learned Single Judge and the Division Bench rightly recorded concurrent findings upholding the levy. Observing that the appellant being occupier of the premises, though not directly connected to the sewer line of the Board, is ultimately letting into the seweragesystem of theBoard after partial treatment at JETL, the High Court was right in holding that the levy of sewerage cess is in accordance with Section 55 of HMWS&S Act. The payment of sewerage surcharges and the other charges by JETL cannot take away the statutory liability of sewerage cess levied on the occupier of the premises who consumes water and lets out the sewage into the Board sewer system. The payment of sewerage surcharge and other charges by JETL to the respondent-Board will not amount to double levy and the High Court rightly dismissed the writ petitions and also the review petitions filed by the appellant. The impugned order does not suffer from any infirmity warranting interference.
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C. M. Arumugam Vs. S. Rajgopal and Others | after his reconversion to Hinduism, any step had been taken by the members of the Adi Dravida caste indicating that he was being accepted as a member of that caste. The first respondent, therefore, in the present case, led considerable oral as well as documentary evidence tending to show that subsequent to January-February, 1967, the first respondent has been accepted as a member of the Adi Dravida caste. The High Court referred to twelve circumstances appearing from the evidence and held on the basis of these twelve circumstances, that the Adi Dravida caste had accepted the first respondent as its members and he accordingly belonged to the Adi Dravida caste at the material time. Now, out of these twelve circumstances, we do not attach any importance to the first, circumstance which refers to the celebrations of the marriages of his younger brothers Govindaraj and Manickam by the first respondent in the Adi Dravida manner, because it is quite natural that if Govindaraj and Manickam were Adi Dravida Hindus, their marriages would be celebrated according to Adi Dravida rites and merely because the first respondent, as their elder, celebrated their marriages, it would not follow that he was also an Adi Dravida Hindu. The second circumstance that the first respondent was looked upon as a peace-maker among the Adi Dravida Hindus of KGF cannot also be regarded as of much significance, because, if the first respondent was a recognised leader, it is quite possible that the Adi Dravida Hindu of KGF might go to him for resolution of their disputes, even thought he himself might not be an Adi Dravida Hindu. But the third, fourth and fifth circumstances are of importance, because, unless the first respondent was recognised and accepted as an Adi Dravida Hindu, he would not have been invited to lay the foundation stone for the construction of the new wall of the temple at Jambakullam, which was essentially a temple of Adi Dravida Hindus, nor would he have been requested to participate in the Margazhi Thiruppavai celebration at the Kannabhiran Temple situate at III Line, Kennedy Block, KGF, which was also a temple essentially maintained by the Adi Dravida Hindus and equally, he would not have been invited to preside at the Adi Krittikai festival at Mariamman Temple in I, Post Office Block, Marikuppam, KGF where the devotees are Adi Dravida or to start the procession of the deity at such festival. These three circumstances are strongly indicative of the fact that the first respondent was accepted and treated as a member by the Adi Dravida community. So also does the sixth circumstance that the first respondent was a member of the Executive Committee of the Scheduled Caste cell in the organisation of the Ruling Congress indicate in the same direction. The seventh and eighth circumstances are again of a neutral character. The funeral ceremonies and obsequies of the father of the first respondent would naturally be performed according to the Adi Dravida Hindu rites if he was an Adi Dravida Hindu and that would not mean that the first respondent was also an Adi Dravida Hindu. Similarly, the fact that the first respondent participated in the first annual ceremonies of the late M. A. Vadivelu would not indicate that the first respondent was also an Adi Dravida Hindu like the late M. A. Vadivelu. But the ninth circumstance is again very important. It is significant that the children of the first respondent were registered in the school as Adi Dravida Hindus and even the appellant himself issued a certificate stating that R. Kumar, the son of the first respondent, was a scheduled caste Adi Dravida Hindu. The tenth circumstance that the first respondent participated in the All India Scheduled Castes Conference at New Delhi on August on 30 and 31, 1968, may not be regarded as of any particular importance. It would merely indicate his intention and desire to regard himself as a member of the Adi Dravida caste. The eleventh circumstance is, however, of some importance, because it shows that throughout, the first respondent was treated as a member of the Adi Dravida caste and he was never disowned by the members of that caste. They always regarded him as an Adi Dravida belonging to their fold. But the most important of all these circumstance is the twelfth, namely, the Scheduled Caste Conference held at Skating Rink, Nundydroog Mine, KGF on August 11, 1968. The High Court has discussed the evidence in regard to this conference in some detail. We have carefully gone through the evidence of the witnesses on this point, but we do not find anything wrong in the appreciation of their evidence by the High Court. We are particularly impressed by the evidence of Kakkan (PW 13). The cross-examination of J. C. Adimoolam (RW 1) is also quite revealing. We find ourselves completely in agreement with the view taken by the High Court that this conference, attended largely by Adi Dravida Hindus, was held on August 11, 1968 inter alia with the object of readmitting the first respondent into the fold of Adi Dravida caste and not only was a purificatory ceremony performed on the first respondent at this conference with a view to clearing the doubt which had been case on his membership of the Adi Dravida caste by the decision of this Court in the earlier case but an address Ex. P-56 was also presented to the first respondent felicitating him on this occasion.19. It is clear from these circumstances, which have been discussed and accepted by us, that after his reconversion to Hinduism, the first respondent was recognised and accepted as a member of the Adi Dravida caste by the other members of that community. The High Court was, therefore, right in coming to the conclusion that at the material time the first respondent belonged to the Adi Dravida caste so as to fall within the category of scheduled castes under Paragraph 2 of the Constitution (Scheduled Castes) Order, 1950. | 0[ds]The first respondent must be held bound by the concession made by him on a question of fact before the High Court. We cannot, therefore, permit the first respondent to raise an argument that the evidence on record does not establish that he embraced Christianity in 1949. We must proceed on the basis that he was converted to Christianity in that year.8. The position is, however, different when we turn to the question whether, on conversion to Christianity, the first respondent ceased to be a members of the Adi Dravida caste. That question is a mixed question of law and fact and we do not think that a concession made by the first respondent on such a question at the stage of argument before the High Court, can preclude him from reagitating it in the appeal before this Court, when it formed theof an issue before the High Court and full and complete evidence in regard to such issue was led by both parties. It is true that this Court held in the earlier case that, on embracing Christianity in 1949, the first respondent ceased to be a member of the Adi Dravida caste, but this decision given in a case relating to 1967 General Election on the basis of the evidence led in that case, cannot be res judicata in the present case which relates to 1972 General Election and where fresh evidence has been adduced on behalf of the parties, and more so, when all the parties in the present case are not the same as those in the earlier case. It is, therefore, competent to us to consider whether, on the evidence on record in the present case, it can be said to have been established that, on conversion to Christianity in 1949, the first respondent ceased to belong to Adi Dravida caste.9. It is a matter of common knowledge that the institution of caste is a peculiarly Indian institution. There is considerable controversy amongst scholars as to how the caste system originated in this country. It is not necessary for the purpose of this appeal to go into this highly debatable question. It is sufficient to state that originally there were only four main castes, but gradually castes andmultiplied as the social fabric expanded with the absorption of different groups of people belonging to various cults and professing different religious faiths. The caste system in its early stages was quite elastic but in course of time it gradually hardened into a rigid framework based upon heredity. Inevitably it gave rise to gradation which resulted in social inequality and put a premium on snobbery. The caste system tended to develop, as it were, group snobbery, one caste looking down upon another. Thus there came into being social hierarchy and stratification resulting in perpetration of social and economic injustice by thehigher castes on the lower castes. It was for this reason that it was thought necessary by theto accord favoured treatment to the lower castes who were at the bottom of the scale of social values and who were afflicted by social and economic disabilities and theaccordingly provided that the President may specify the castes and these would obviously be the lower castes which had suffered centuries of oppression and exploitationwhich shall be deemed to be scheduled castes and laid down the principle that seats should be reserved in the legislature for the scheduled castes as it was believed, and rightly, that the higher castes would not properly represent the interest of these lower castes.It cannot, therefore, be laid down as an absolute rule uniformly applicable in all cases that whenever a member of a caste is converted from Hinduism to Christianity, he loses his membership of the caste. It is true that ordinarily on conversion to Christianity, he would cease to be a member of the caste, but that is not an invariable rule. It would depend on the structure of the caste and its rules and regulations. There are castes, particularly in South India, where this consequence does not follow on conversion, since such castes comprise both Hindus and Christians. Whether Adi Dravida is a caste which falls within this category or not is question which would have to be determined on the evidence in this case. There is on the record evidence of Kakkan (PW 13), J. C. Adimoolam (RW 1) and K. P. Arumugam (RW 8), the last two being witnesses examined on behalf of the appellant, which shows that amongst Adi Dravidas, there are both Hindus and Christians and there arebetween them. It would, therefore, prima facie seem that, on conversion to Christianity, the first respondent did not cease to belong to Adi Dravida caste. But in the view we are taking as regards the last contention, we do not think it necessary to express any final opinion on thisargument is not sound on principle and it also runs counter to a long line of decided cases. Ganapathi Iyer, a distinguished scholar and jurist, pointed out as far back as 1915 in his well known treatise on Hindu Law :... caste is a social combination, the members of which are enlisted by birth and not by enrolment. People do not join castes or religious fraternities as a matter of choice (in one respect); they belong to them as a matter of necessity; they are born in their respective castes or sects. It cannot be said, however, that membership by caste is determined only by birth and not by anything else.These cases show that the consistent view taken in this country from the timeof Madras v. Anandachari was decided, that is, since 1886, has been that on reconversion to Hinduism, a person can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member. There is no reason either on principle or on authority which should compel us to disregard this view which has prevailed for almost a century and lay down a different rule on the subject. If a person who has embraced another religion can be reconverted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the caste are prepared to readmit him as a member. It stands to reason that he should be able to come back to the fold to which he once belonged, provided of course the community is willing to take him within the fold. It is the orthodox Hindu society still dominated to a large extent, particularly in rural areas, by medievalistic outlook andapproach which attaches social and economic disabilities to a person belonging to a scheduled caste and that is why certain favoured treatment is given to him by the Constitution. Once such a person ceases to be a Hindu and becomes a Christian, the social and economic disabilities arising because of Hindu religion cease and hence it is no longer necessary to give him protection and for this reason he is deemed not to belong to a scheduled caste. But when he is reconverted to Hinduism, the social and economic disabilities once again revive and become attached to him because these are disabilities inflicted by Hinduism. A Mahar or a Koli or a Mala would not be recognised as anything but a Mahar or a Koli or a Mala after reconversion to Hinduism and he would suffer from the same social and economic disabilities from which he suffered before he was converted to another religion. It is, therefore, obvious that the object and purpose of the Constitution (Scheduled Castes) Order, 1950 would be advanced rather than retarded by taking the view that on reconversion to Hinduism, a person can once again become a member of the scheduled caste to which he belonged prior to his conversion. We accordingly agree with the view taken by the High Court that on reconversion to Hinduism, the first respondent could once again revert to his original Adi Dravida caste if he was accepted as such by the other members of theCourt in the earlier decision between the parties found that the first respondent had not produced evidence to show that after his reconversion to Hinduism, any step had been taken by the members of the Adi Dravida caste indicating that he was being accepted as a member of that caste. The first respondent, therefore, in the present case, led considerable oral as well as documentary evidence tending to show that subsequent to1967, the first respondent has been accepted as a member of the Adi Dravida caste. The High Court referred to twelve circumstances appearing from the evidence and held on the basis of these twelve circumstances, that the Adi Dravida caste had accepted the first respondent as its members and he accordingly belonged to the Adi Dravida caste at the material time. Now, out of these twelve circumstances, we do not attach any importance to the first, circumstance which refers to the celebrations of the marriages of his younger brothers Govindaraj and Manickam by the first respondent in the Adi Dravida manner, because it is quite natural that if Govindaraj and Manickam were Adi Dravida Hindus, their marriages would be celebrated according to Adi Dravida rites and merely because the first respondent, as their elder, celebrated their marriages, it would not follow that he was also an Adi Dravida Hindu. The second circumstance that the first respondent was looked upon as aamong the Adi Dravida Hindus of KGF cannot also be regarded as of much significance, because, if the first respondent was a recognised leader, it is quite possible that the Adi Dravida Hindu of KGF might go to him for resolution of their disputes, even thought he himself might not be an Adi Dravida Hindu. But the third, fourth and fifth circumstances are of importance, because, unless the first respondent was recognised and accepted as an Adi Dravida Hindu, he would not have been invited to lay the foundation stone for the construction of the new wall of the temple at Jambakullam, which was essentially a temple of Adi Dravida Hindus, nor would he have been requested to participate in the Margazhi Thiruppavai celebration at the Kannabhiran Temple situate at III Line, Kennedy Block, KGF, which was also a temple essentially maintained by the Adi Dravida Hindus and equally, he would not have been invited to preside at the Adi Krittikai festival at Mariamman Temple in I, Post Office Block, Marikuppam, KGF where the devotees are Adi Dravida or to start the procession of the deity at such festival. These three circumstances are strongly indicative of the fact that the first respondent was accepted and treated as a member by the Adi Dravida community. So also does the sixth circumstance that the first respondent was a member of the Executive Committee of the Scheduled Caste cell in the organisation of the Ruling Congress indicate in the same direction. The seventh and eighth circumstances are again of a neutral character. The funeral ceremonies and obsequies of the father of the first respondent would naturally be performed according to the Adi Dravida Hindu rites if he was an Adi Dravida Hindu and that would not mean that the first respondent was also an Adi Dravida Hindu. Similarly, the fact that the first respondent participated in the first annual ceremonies of the late M. A. Vadivelu would not indicate that the first respondent was also an Adi Dravida Hindu like the late M. A. Vadivelu. But the ninth circumstance is again very important. It is significant that the children of the first respondent were registered in the school as Adi Dravida Hindus and even the appellant himself issued a certificate stating that R. Kumar, the son of the first respondent, was a scheduled caste Adi Dravida Hindu. The tenth circumstance that the first respondent participated in the All India Scheduled Castes Conference at New Delhi on August on 30 and 31, 1968, may not be regarded as of any particular importance. It would merely indicate his intention and desire to regard himself as a member of the Adi Dravida caste. The eleventh circumstance is, however, of some importance, because it shows that throughout, the first respondent was treated as a member of the Adi Dravida caste and he was never disowned by the members of that caste. They always regarded him as an Adi Dravida belonging to their fold. But the most important of all these circumstance is the twelfth, namely, the Scheduled Caste Conference held at Skating Rink, Nundydroog Mine, KGF on August 11, 1968. The High Court has discussed the evidence in regard to this conference in some detail. We have carefully gone through the evidence of the witnesses on this point, but we do not find anything wrong in the appreciation of their evidence by the High Court. We are particularly impressed by the evidence of Kakkan (PW 13). Theof J. C. Adimoolam (RW 1) is also quite revealing. We find ourselves completely in agreement with the view taken by the High Court that this conference, attended largely by Adi Dravida Hindus, was held on August 11, 1968 inter alia with the object of readmitting the first respondent into the fold of Adi Dravida caste and not only was a purificatory ceremony performed on the first respondent at this conference with a view to clearing the doubt which had been case on his membership of the Adi Dravida caste by the decision of this Court in the earlier case but an address Ex.was also presented to the first respondent felicitating him on this occasion.19. It is clear from these circumstances, which have been discussed and accepted by us, that after his reconversion to Hinduism, the first respondent was recognised and accepted as a member of the Adi Dravida caste by the other members of that community. The High Court was, therefore, right in coming to the conclusion that at the material time the first respondent belonged to the Adi Dravida caste so as to fall within the category of scheduled castes under Paragraph 2 of the Constitution (Scheduled Castes) Order, 1950. | 0 | 8,244 | 2,578 | ### 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:
after his reconversion to Hinduism, any step had been taken by the members of the Adi Dravida caste indicating that he was being accepted as a member of that caste. The first respondent, therefore, in the present case, led considerable oral as well as documentary evidence tending to show that subsequent to January-February, 1967, the first respondent has been accepted as a member of the Adi Dravida caste. The High Court referred to twelve circumstances appearing from the evidence and held on the basis of these twelve circumstances, that the Adi Dravida caste had accepted the first respondent as its members and he accordingly belonged to the Adi Dravida caste at the material time. Now, out of these twelve circumstances, we do not attach any importance to the first, circumstance which refers to the celebrations of the marriages of his younger brothers Govindaraj and Manickam by the first respondent in the Adi Dravida manner, because it is quite natural that if Govindaraj and Manickam were Adi Dravida Hindus, their marriages would be celebrated according to Adi Dravida rites and merely because the first respondent, as their elder, celebrated their marriages, it would not follow that he was also an Adi Dravida Hindu. The second circumstance that the first respondent was looked upon as a peace-maker among the Adi Dravida Hindus of KGF cannot also be regarded as of much significance, because, if the first respondent was a recognised leader, it is quite possible that the Adi Dravida Hindu of KGF might go to him for resolution of their disputes, even thought he himself might not be an Adi Dravida Hindu. But the third, fourth and fifth circumstances are of importance, because, unless the first respondent was recognised and accepted as an Adi Dravida Hindu, he would not have been invited to lay the foundation stone for the construction of the new wall of the temple at Jambakullam, which was essentially a temple of Adi Dravida Hindus, nor would he have been requested to participate in the Margazhi Thiruppavai celebration at the Kannabhiran Temple situate at III Line, Kennedy Block, KGF, which was also a temple essentially maintained by the Adi Dravida Hindus and equally, he would not have been invited to preside at the Adi Krittikai festival at Mariamman Temple in I, Post Office Block, Marikuppam, KGF where the devotees are Adi Dravida or to start the procession of the deity at such festival. These three circumstances are strongly indicative of the fact that the first respondent was accepted and treated as a member by the Adi Dravida community. So also does the sixth circumstance that the first respondent was a member of the Executive Committee of the Scheduled Caste cell in the organisation of the Ruling Congress indicate in the same direction. The seventh and eighth circumstances are again of a neutral character. The funeral ceremonies and obsequies of the father of the first respondent would naturally be performed according to the Adi Dravida Hindu rites if he was an Adi Dravida Hindu and that would not mean that the first respondent was also an Adi Dravida Hindu. Similarly, the fact that the first respondent participated in the first annual ceremonies of the late M. A. Vadivelu would not indicate that the first respondent was also an Adi Dravida Hindu like the late M. A. Vadivelu. But the ninth circumstance is again very important. It is significant that the children of the first respondent were registered in the school as Adi Dravida Hindus and even the appellant himself issued a certificate stating that R. Kumar, the son of the first respondent, was a scheduled caste Adi Dravida Hindu. The tenth circumstance that the first respondent participated in the All India Scheduled Castes Conference at New Delhi on August on 30 and 31, 1968, may not be regarded as of any particular importance. It would merely indicate his intention and desire to regard himself as a member of the Adi Dravida caste. The eleventh circumstance is, however, of some importance, because it shows that throughout, the first respondent was treated as a member of the Adi Dravida caste and he was never disowned by the members of that caste. They always regarded him as an Adi Dravida belonging to their fold. But the most important of all these circumstance is the twelfth, namely, the Scheduled Caste Conference held at Skating Rink, Nundydroog Mine, KGF on August 11, 1968. The High Court has discussed the evidence in regard to this conference in some detail. We have carefully gone through the evidence of the witnesses on this point, but we do not find anything wrong in the appreciation of their evidence by the High Court. We are particularly impressed by the evidence of Kakkan (PW 13). The cross-examination of J. C. Adimoolam (RW 1) is also quite revealing. We find ourselves completely in agreement with the view taken by the High Court that this conference, attended largely by Adi Dravida Hindus, was held on August 11, 1968 inter alia with the object of readmitting the first respondent into the fold of Adi Dravida caste and not only was a purificatory ceremony performed on the first respondent at this conference with a view to clearing the doubt which had been case on his membership of the Adi Dravida caste by the decision of this Court in the earlier case but an address Ex. P-56 was also presented to the first respondent felicitating him on this occasion.19. It is clear from these circumstances, which have been discussed and accepted by us, that after his reconversion to Hinduism, the first respondent was recognised and accepted as a member of the Adi Dravida caste by the other members of that community. The High Court was, therefore, right in coming to the conclusion that at the material time the first respondent belonged to the Adi Dravida caste so as to fall within the category of scheduled castes under Paragraph 2 of the Constitution (Scheduled Castes) Order, 1950.
### Response:
0
### Explanation:
respondent had not produced evidence to show that after his reconversion to Hinduism, any step had been taken by the members of the Adi Dravida caste indicating that he was being accepted as a member of that caste. The first respondent, therefore, in the present case, led considerable oral as well as documentary evidence tending to show that subsequent to1967, the first respondent has been accepted as a member of the Adi Dravida caste. The High Court referred to twelve circumstances appearing from the evidence and held on the basis of these twelve circumstances, that the Adi Dravida caste had accepted the first respondent as its members and he accordingly belonged to the Adi Dravida caste at the material time. Now, out of these twelve circumstances, we do not attach any importance to the first, circumstance which refers to the celebrations of the marriages of his younger brothers Govindaraj and Manickam by the first respondent in the Adi Dravida manner, because it is quite natural that if Govindaraj and Manickam were Adi Dravida Hindus, their marriages would be celebrated according to Adi Dravida rites and merely because the first respondent, as their elder, celebrated their marriages, it would not follow that he was also an Adi Dravida Hindu. The second circumstance that the first respondent was looked upon as aamong the Adi Dravida Hindus of KGF cannot also be regarded as of much significance, because, if the first respondent was a recognised leader, it is quite possible that the Adi Dravida Hindu of KGF might go to him for resolution of their disputes, even thought he himself might not be an Adi Dravida Hindu. But the third, fourth and fifth circumstances are of importance, because, unless the first respondent was recognised and accepted as an Adi Dravida Hindu, he would not have been invited to lay the foundation stone for the construction of the new wall of the temple at Jambakullam, which was essentially a temple of Adi Dravida Hindus, nor would he have been requested to participate in the Margazhi Thiruppavai celebration at the Kannabhiran Temple situate at III Line, Kennedy Block, KGF, which was also a temple essentially maintained by the Adi Dravida Hindus and equally, he would not have been invited to preside at the Adi Krittikai festival at Mariamman Temple in I, Post Office Block, Marikuppam, KGF where the devotees are Adi Dravida or to start the procession of the deity at such festival. These three circumstances are strongly indicative of the fact that the first respondent was accepted and treated as a member by the Adi Dravida community. So also does the sixth circumstance that the first respondent was a member of the Executive Committee of the Scheduled Caste cell in the organisation of the Ruling Congress indicate in the same direction. The seventh and eighth circumstances are again of a neutral character. The funeral ceremonies and obsequies of the father of the first respondent would naturally be performed according to the Adi Dravida Hindu rites if he was an Adi Dravida Hindu and that would not mean that the first respondent was also an Adi Dravida Hindu. Similarly, the fact that the first respondent participated in the first annual ceremonies of the late M. A. Vadivelu would not indicate that the first respondent was also an Adi Dravida Hindu like the late M. A. Vadivelu. But the ninth circumstance is again very important. It is significant that the children of the first respondent were registered in the school as Adi Dravida Hindus and even the appellant himself issued a certificate stating that R. Kumar, the son of the first respondent, was a scheduled caste Adi Dravida Hindu. The tenth circumstance that the first respondent participated in the All India Scheduled Castes Conference at New Delhi on August on 30 and 31, 1968, may not be regarded as of any particular importance. It would merely indicate his intention and desire to regard himself as a member of the Adi Dravida caste. The eleventh circumstance is, however, of some importance, because it shows that throughout, the first respondent was treated as a member of the Adi Dravida caste and he was never disowned by the members of that caste. They always regarded him as an Adi Dravida belonging to their fold. But the most important of all these circumstance is the twelfth, namely, the Scheduled Caste Conference held at Skating Rink, Nundydroog Mine, KGF on August 11, 1968. The High Court has discussed the evidence in regard to this conference in some detail. We have carefully gone through the evidence of the witnesses on this point, but we do not find anything wrong in the appreciation of their evidence by the High Court. We are particularly impressed by the evidence of Kakkan (PW 13). Theof J. C. Adimoolam (RW 1) is also quite revealing. We find ourselves completely in agreement with the view taken by the High Court that this conference, attended largely by Adi Dravida Hindus, was held on August 11, 1968 inter alia with the object of readmitting the first respondent into the fold of Adi Dravida caste and not only was a purificatory ceremony performed on the first respondent at this conference with a view to clearing the doubt which had been case on his membership of the Adi Dravida caste by the decision of this Court in the earlier case but an address Ex.was also presented to the first respondent felicitating him on this occasion.19. It is clear from these circumstances, which have been discussed and accepted by us, that after his reconversion to Hinduism, the first respondent was recognised and accepted as a member of the Adi Dravida caste by the other members of that community. The High Court was, therefore, right in coming to the conclusion that at the material time the first respondent belonged to the Adi Dravida caste so as to fall within the category of scheduled castes under Paragraph 2 of the Constitution (Scheduled Castes) Order, 1950.
|
Arati Paul Vs. The Registrar, Original Side, High Courtcalcutta & Ors | as a judgment amounting to a decision by consent of parties. In the case before us, the position is different. No appeal was ever sought to be filed against the order of Mallick, J. dated 1st April, 1963. Further the language of the agreement of the parties, on the basis of which Mallick, J. proceeded to make that order was different from that considered in these various decisions. At the first stage, the parties got it recorded that the matters were to be settled and referred to the sole arbitration of Mallick, J. The parties agreed to abide by any decision that might be given by him and that no evidence need be taken except or to whatever extent Mallick, J. might desire. The evidence need not be recorded in any formal manner. Mallick, J. was to have all the summary powers including the power to divide and partition the properties. The conferment of these powers on Mallick, J., who was already seized of the partition suit, was clearly intended to enable him to function as an arbitrator so as not to be bound by the rules of procedure applicable to him as a Court. At the same time, the parties added that Mallick, J. was to make such decrees as he thought fit and proper and, for the purpose of partition, if necessary, he could engage or appoint surveyors and Commissioners as he thought best. On the face of it, an arbitrator could not pass any decree. The decree could only be passed by Mallick, J. in his capacity of Court seized of the suit. Even if it be held that the first part of the agreement had the effect of bringing about a reference to him in his capacity as arbitrator, he did not cease to be seized of the partition suit as a Court. Even under the Arbitration Act, if a reference is made to an arbitrator in a suit pending in a Court, the Court does not cease to have jurisdiction over the suit.All that is required by the provisions of the Arbitration Act is that no further proceedings are to be taken by the Court, except in accordance with the other provisions of that Act. The suit continues to remain pending before the Court. In a case like the present, where the arbitration agreement envisages that the Presiding of the Court should himself act as an arbitrator, he, in such circumstances, will obviously occupy a dual capacity. He will be both an arbitrator to decide the matters referred to him by the agreement of the parties, and a Court before which the suit continues to remain pending having jurisdiction to deal with the suit in accordance with the provisions of the Arbitration Act.It is a question whether a reference to arbitration by a Presiding Judge, before whom a suit is pending, can be competently made under the Arbitration Act, butthat is a point on which we need express no opinion, because if it be held that there was no reference to arbitration in the present case, the order passed by Mallick, J. must be held to be a preliminary decree passed by him as a Court seized of the partition suit. On the other hand, even if it be held that there was a competent reference, it is clear that, after deciding the matters left to his decision as an arbitrator by the parties, Mallick, J., proceeded further to deal with the suit himself as a Court and to pass a preliminary decree in it which course being adopted by him was envisaged by the parties themselves when they stated that he could make such decrees in the suit as he thought fit. The actual order passed by Mallick, J. also makes it clear that, in passing that order, he purported to act as the Court deciding the suit and not as the arbitrator to whom some matters in dispute were referred by the parties.At the beginning of the order, Mallick J. described himself as "the Court." When making the operative order, he used the following language:-"In the result, for the present, I will pass a preliminary decree as under:-"On the face of it, when he passed this order, he acted as a Judge seized of the suit who alone was competent to pass the preliminary decree in the suit. Consequently, we cannot accept the submission made by Mr. Chagla that the order made by Mallick, J. should be held to be an award of an arbitrator pure and simple and not a decree by a Court.18. We are not concerned in this appeal with the question whether it was appropriate for Mallick, J. to have dealt with the suit in this manner, nor whether the actual order made by him passing the preliminary decree was correct or was liable to be set aside on the ground of the incorrect procedure adopted by him.As we have mentioned earlier, the sole relief claimed before the High Court was the issue of a writ of mandamus directing the Registrar on the Original Side to recall, cancel and withdraw this order and to take it off the record, on the ground that it was an award and not a judgment of the Court. Since we have held that it was a judgment of the Court, the Registrar on the Original Side, under the Rules of the Calcutta High Court, was bound to file it on the record and retain it there. The appellant could have sought appropriate remedy, for having that judgment vacated and, if such a remedy had been sought against that judgment directly, the question whether it was a good judgment and should be retained on the record or not could have been appropriately decided. The remedy sought by the appellant of seeking a writ to restrain the Registrar on the Original Side from keeping the judgment on the record of the suit could not possibly be allowed, while the judgment stood and was not vacated. | 0[ds]17. A review of all these decisions shows that the question as to the nature of an order made in circumstances similar to those with which we are concerned has been considered both in England and in India primarily for the purpose of deciding whether such an order is subject to an appeal like an ordinary judgment of a Court from which an appeal lies. In some cases, the right of appeal was negatived on the ground that such a decision was in the nature of an arbitrators award. In other cases, it has been treated as a judgment amounting to a decision by consent of parties. In the case before us, the position is different. No appeal was ever sought to be filed against the order of Mallick, J. dated 1st April, 1963. Further the language of the agreement of the parties, on the basis of which Mallick, J. proceeded to make that order was different from that considered in these various decisions. At the first stage, the parties got it recorded that the matters were to be settled and referred to the sole arbitration of Mallick, J. The parties agreed to abide by any decision that might be given by him and that no evidence need be taken except or to whatever extent Mallick, J. might desire. The evidence need not be recorded in any formal manner. Mallick, J. was to have all the summary powers including the power to divide and partition the properties. The conferment of these powers on Mallick, J., who was already seized of the partition suit, was clearly intended to enable him to function as an arbitrator so as not to be bound by the rules of procedure applicable to him as a Court. At the same time, the parties added that Mallick, J. was to make such decrees as he thought fit and proper and, for the purpose of partition, if necessary, he could engage or appoint surveyors and Commissioners as he thought best. On the face of it, an arbitrator could not pass any decree. The decree could only be passed by Mallick, J. in his capacity of Court seized of the suit. Even if it be held that the first part of the agreement had the effect of bringing about a reference to him in his capacity as arbitrator, he did not cease to be seized of the partition suit as a Court. Even under the Arbitration Act, if a reference is made to an arbitrator in a suit pending in a Court, the Court does not cease to have jurisdiction over the suit.All that is required by the provisions of the Arbitration Act is that no further proceedings are to be taken by the Court, except in accordance with the other provisions of that Act. The suit continues to remain pending before the Court. In a case like the present, where the arbitration agreement envisages that the Presiding of the Court should himself act as an arbitrator, he, in such circumstances, will obviously occupy a dual capacity. He will be both an arbitrator to decide the matters referred to him by the agreement of the parties, and a Court before which the suit continues to remain pending having jurisdiction to deal with the suit in accordance with the provisions of the Arbitration Act.It is a question whether a reference to arbitration by a Presiding Judge, before whom a suit is pending, can be competently made under the Arbitration Act, butthat is a point on which we need express no opinion, because if it be held that there was no reference to arbitration in the present case, the order passed by Mallick, J. must be held to be a preliminary decree passed by him as a Court seized of the partition suit. On the other hand, even if it be held that there was a competent reference, it is clear that, after deciding the matters left to his decision as an arbitrator by the parties, Mallick, J., proceeded further to deal with the suit himself as a Court and to pass a preliminary decree in it which course being adopted by him was envisaged by the parties themselves when they stated that he could make such decrees in the suit as he thought fit. The actual order passed by Mallick, J. also makes it clear that, in passing that order, he purported to act as the Court deciding the suit and not as the arbitrator to whom some matters in dispute were referred by the parties.At the beginning of the order, Mallick J. described himself as "the Court." When making the operative order, he used the followingthe result, for the present, I will pass a preliminary decree asthe face of it, when he passed this order, he acted as a Judge seized of the suit who alone was competent to pass the preliminary decree in the suit. Consequently, we cannot accept the submission made by Mr. Chagla that the order made by Mallick, J. should be held to be an award of an arbitrator pure and simple and not a decree by a Court.18. We are not concerned in this appeal with the question whether it was appropriate for Mallick, J. to have dealt with the suit in this manner, nor whether the actual order made by him passing the preliminary decree was correct or was liable to be set aside on the ground of the incorrect procedure adopted by him.As we have mentioned earlier, the sole relief claimed before the High Court was the issue of a writ of mandamus directing the Registrar on the Original Side to recall, cancel and withdraw this order and to take it off the record, on the ground that it was an award and not a judgment of the Court. Since we have held that it was a judgment of the Court, the Registrar on the Original Side, under the Rules of the Calcutta High Court, was bound to file it on the record and retain it there. The appellant could have sought appropriate remedy, for having that judgment vacated and, if such a remedy had been sought against that judgment directly, the question whether it was a good judgment and should be retained on the record or not could have been appropriately decided. The remedy sought by the appellant of seeking a writ to restrain the Registrar on the Original Side from keeping the judgment on the record of the suit could not possibly be allowed, while the judgment stood and was not vacated. | 0 | 8,522 | 1,192 | ### 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:
as a judgment amounting to a decision by consent of parties. In the case before us, the position is different. No appeal was ever sought to be filed against the order of Mallick, J. dated 1st April, 1963. Further the language of the agreement of the parties, on the basis of which Mallick, J. proceeded to make that order was different from that considered in these various decisions. At the first stage, the parties got it recorded that the matters were to be settled and referred to the sole arbitration of Mallick, J. The parties agreed to abide by any decision that might be given by him and that no evidence need be taken except or to whatever extent Mallick, J. might desire. The evidence need not be recorded in any formal manner. Mallick, J. was to have all the summary powers including the power to divide and partition the properties. The conferment of these powers on Mallick, J., who was already seized of the partition suit, was clearly intended to enable him to function as an arbitrator so as not to be bound by the rules of procedure applicable to him as a Court. At the same time, the parties added that Mallick, J. was to make such decrees as he thought fit and proper and, for the purpose of partition, if necessary, he could engage or appoint surveyors and Commissioners as he thought best. On the face of it, an arbitrator could not pass any decree. The decree could only be passed by Mallick, J. in his capacity of Court seized of the suit. Even if it be held that the first part of the agreement had the effect of bringing about a reference to him in his capacity as arbitrator, he did not cease to be seized of the partition suit as a Court. Even under the Arbitration Act, if a reference is made to an arbitrator in a suit pending in a Court, the Court does not cease to have jurisdiction over the suit.All that is required by the provisions of the Arbitration Act is that no further proceedings are to be taken by the Court, except in accordance with the other provisions of that Act. The suit continues to remain pending before the Court. In a case like the present, where the arbitration agreement envisages that the Presiding of the Court should himself act as an arbitrator, he, in such circumstances, will obviously occupy a dual capacity. He will be both an arbitrator to decide the matters referred to him by the agreement of the parties, and a Court before which the suit continues to remain pending having jurisdiction to deal with the suit in accordance with the provisions of the Arbitration Act.It is a question whether a reference to arbitration by a Presiding Judge, before whom a suit is pending, can be competently made under the Arbitration Act, butthat is a point on which we need express no opinion, because if it be held that there was no reference to arbitration in the present case, the order passed by Mallick, J. must be held to be a preliminary decree passed by him as a Court seized of the partition suit. On the other hand, even if it be held that there was a competent reference, it is clear that, after deciding the matters left to his decision as an arbitrator by the parties, Mallick, J., proceeded further to deal with the suit himself as a Court and to pass a preliminary decree in it which course being adopted by him was envisaged by the parties themselves when they stated that he could make such decrees in the suit as he thought fit. The actual order passed by Mallick, J. also makes it clear that, in passing that order, he purported to act as the Court deciding the suit and not as the arbitrator to whom some matters in dispute were referred by the parties.At the beginning of the order, Mallick J. described himself as "the Court." When making the operative order, he used the following language:-"In the result, for the present, I will pass a preliminary decree as under:-"On the face of it, when he passed this order, he acted as a Judge seized of the suit who alone was competent to pass the preliminary decree in the suit. Consequently, we cannot accept the submission made by Mr. Chagla that the order made by Mallick, J. should be held to be an award of an arbitrator pure and simple and not a decree by a Court.18. We are not concerned in this appeal with the question whether it was appropriate for Mallick, J. to have dealt with the suit in this manner, nor whether the actual order made by him passing the preliminary decree was correct or was liable to be set aside on the ground of the incorrect procedure adopted by him.As we have mentioned earlier, the sole relief claimed before the High Court was the issue of a writ of mandamus directing the Registrar on the Original Side to recall, cancel and withdraw this order and to take it off the record, on the ground that it was an award and not a judgment of the Court. Since we have held that it was a judgment of the Court, the Registrar on the Original Side, under the Rules of the Calcutta High Court, was bound to file it on the record and retain it there. The appellant could have sought appropriate remedy, for having that judgment vacated and, if such a remedy had been sought against that judgment directly, the question whether it was a good judgment and should be retained on the record or not could have been appropriately decided. The remedy sought by the appellant of seeking a writ to restrain the Registrar on the Original Side from keeping the judgment on the record of the suit could not possibly be allowed, while the judgment stood and was not vacated.
### Response:
0
### Explanation:
it has been treated as a judgment amounting to a decision by consent of parties. In the case before us, the position is different. No appeal was ever sought to be filed against the order of Mallick, J. dated 1st April, 1963. Further the language of the agreement of the parties, on the basis of which Mallick, J. proceeded to make that order was different from that considered in these various decisions. At the first stage, the parties got it recorded that the matters were to be settled and referred to the sole arbitration of Mallick, J. The parties agreed to abide by any decision that might be given by him and that no evidence need be taken except or to whatever extent Mallick, J. might desire. The evidence need not be recorded in any formal manner. Mallick, J. was to have all the summary powers including the power to divide and partition the properties. The conferment of these powers on Mallick, J., who was already seized of the partition suit, was clearly intended to enable him to function as an arbitrator so as not to be bound by the rules of procedure applicable to him as a Court. At the same time, the parties added that Mallick, J. was to make such decrees as he thought fit and proper and, for the purpose of partition, if necessary, he could engage or appoint surveyors and Commissioners as he thought best. On the face of it, an arbitrator could not pass any decree. The decree could only be passed by Mallick, J. in his capacity of Court seized of the suit. Even if it be held that the first part of the agreement had the effect of bringing about a reference to him in his capacity as arbitrator, he did not cease to be seized of the partition suit as a Court. Even under the Arbitration Act, if a reference is made to an arbitrator in a suit pending in a Court, the Court does not cease to have jurisdiction over the suit.All that is required by the provisions of the Arbitration Act is that no further proceedings are to be taken by the Court, except in accordance with the other provisions of that Act. The suit continues to remain pending before the Court. In a case like the present, where the arbitration agreement envisages that the Presiding of the Court should himself act as an arbitrator, he, in such circumstances, will obviously occupy a dual capacity. He will be both an arbitrator to decide the matters referred to him by the agreement of the parties, and a Court before which the suit continues to remain pending having jurisdiction to deal with the suit in accordance with the provisions of the Arbitration Act.It is a question whether a reference to arbitration by a Presiding Judge, before whom a suit is pending, can be competently made under the Arbitration Act, butthat is a point on which we need express no opinion, because if it be held that there was no reference to arbitration in the present case, the order passed by Mallick, J. must be held to be a preliminary decree passed by him as a Court seized of the partition suit. On the other hand, even if it be held that there was a competent reference, it is clear that, after deciding the matters left to his decision as an arbitrator by the parties, Mallick, J., proceeded further to deal with the suit himself as a Court and to pass a preliminary decree in it which course being adopted by him was envisaged by the parties themselves when they stated that he could make such decrees in the suit as he thought fit. The actual order passed by Mallick, J. also makes it clear that, in passing that order, he purported to act as the Court deciding the suit and not as the arbitrator to whom some matters in dispute were referred by the parties.At the beginning of the order, Mallick J. described himself as "the Court." When making the operative order, he used the followingthe result, for the present, I will pass a preliminary decree asthe face of it, when he passed this order, he acted as a Judge seized of the suit who alone was competent to pass the preliminary decree in the suit. Consequently, we cannot accept the submission made by Mr. Chagla that the order made by Mallick, J. should be held to be an award of an arbitrator pure and simple and not a decree by a Court.18. We are not concerned in this appeal with the question whether it was appropriate for Mallick, J. to have dealt with the suit in this manner, nor whether the actual order made by him passing the preliminary decree was correct or was liable to be set aside on the ground of the incorrect procedure adopted by him.As we have mentioned earlier, the sole relief claimed before the High Court was the issue of a writ of mandamus directing the Registrar on the Original Side to recall, cancel and withdraw this order and to take it off the record, on the ground that it was an award and not a judgment of the Court. Since we have held that it was a judgment of the Court, the Registrar on the Original Side, under the Rules of the Calcutta High Court, was bound to file it on the record and retain it there. The appellant could have sought appropriate remedy, for having that judgment vacated and, if such a remedy had been sought against that judgment directly, the question whether it was a good judgment and should be retained on the record or not could have been appropriately decided. The remedy sought by the appellant of seeking a writ to restrain the Registrar on the Original Side from keeping the judgment on the record of the suit could not possibly be allowed, while the judgment stood and was not vacated.
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Southern Power Distribution Company Of Telangana Ltd. Through Its Cmd Vs. Gopal Agarwal | L. Nageswara Rao, J.1. The Writ Petition filed by Respondent No.1 challenging the action of the Appellants in not releasing the Low Tension (domestic) Power Supply was allowed by a Single Judge of the Andhra Pradesh High Court. The appeal filed by the Appellants was dismissed by the Division Bench. Challenging the legality and validity of the said judgment the Appellants have approached this Court by filing this appeal.2. The City Union Bank Limited, the Second Respondent herein issued a tender/sale notice under SARFAESI Act, 2002 for sale of land, plant and machinery in Survey Nos.168/169 in Bollaram village, Medak district which belonged to M/s J.T. Alloys Private Limited. The property was brought to sale due to default in payment of the outstanding loan amount. It was stated in the tender/sale notice dated 22.02.2006 that the sale would be on "as is where is" condition. The First Respondent participated in the auction and was declared the highest bidder in respect of dry land measuring 0.36 hectares in Survey No.168, Bollaram village. A certificate of sale was issued by the authorised officer of the Respondent-Bank on 12.04.2006 and the delivery and possession of the property sold was made free from all encumbrances known to the secured creditor on receipt of Rs. 1,12,50,000/-.3. Appellant No.3, the Superintending Engineer, Operation Circle Medak, informed the Respondent-Bank that an amount of Rs. 1,88,23,185/- was due towards electricity charges from M/s J.T. Alloys Private Limited. The Third Appellant requested the Bank to transfer the residual amount realised from the sale for adjustment towards arrears payable by M/s J.T.Alloys Private Limited. The Bank informed the Third Appellant that there was no amount left after utilisation of the sale proceeds towards its dues.4. The First Respondent applied for a Low Tension (domestic) electricity connection to the premises which he purchased in the auction conducted by the Second Respondent-Bank. As there was no response from the Appellants, the First Respondent filed a Writ Petition in the High Court of Andhra Pradesh. The said Writ Petition was allowed by a judgment dated 23.02.2007 on the ground that the Petitioner cannot be denied the power supply connection due to non payment of arrears payable by the previous owner of the property. The learned Single Judge of the High Court of Andhra Pradesh relied upon two judgments of this Court in Ahmedabad Electricity Co. Ltd. v. Gujarat Inns (P) Ltd. , (2004) 3 SCC 587 and Isha Marbles v. Bihar State Electricity Board , (1995) 2 SCC 648. 5. A Division Bench of the High Court confirmed the judgment of the Single Judge by dismissing the appeal filed by the Appellants. The Division Bench held that there was no evidence produced before the Court to show that the First Respondent had undertaken to discharge the liability of the previous consumer. It was also held that the Appellants cannot withhold the supply of power to Respondent No.1 on the specious ground that the arrears have not been cleared by the previous consumer. The Appellants, as stated earlier, have filed this appeal assailing the said judgment of the High Court.6. We have heard the learned counsel appearing for the parties and we are of the opinion that there is no reason to interfere with the judgment of the High Court. The High Court relied upon the judgment in Isha Marbles(supra) to grant relief to the First Respondent. It was held in the said judgment that an auction purchaser cannot be called upon to clear the past arrears. It was also held that a power connection to an auction purchaser cannot be withheld for the dues of the past owner. The High Court also referred to a judgment in Ahmedabad Electricity Company Limited(supra) wherein the ratio of the judgment in Isha Marbles case was reiterated, particularly with reference to a fresh connection for supply of electricity. In NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479 , the purchaser in an auction sale conducted by the official liquidator on "as is where is" and "whatever there is" basis was found not liable for payment of the electricity arrears. In the said case an advertisement was issued by the official liquidator for sale of moveable and immoveable property of M/s Konark Paper and Industries Limited on "as is where is" and whatever there is" basis. The auction purchaser applied for a fresh electricity connection to its unit which was denied on the ground of non payment of arrears by the past owner. After considering the judgments in Ahmedabad Electricity Company (supra) and Isha Marbles (supra), this Court held that the request of the auction purchaser for a fresh connection could not have been rejected.7. The facts of this case are similar to that of NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479. The tender/sale notice mentioned that the property was being auctioned on "as is where is" basis. The First Respondent applied for a fresh connection and he is in no way connected to the past owner. He has also not undertaken to pay the past arrears of the previous owner. | 0[ds]6. We have heard the learned counsel appearing for the parties and we are of the opinion that there is no reason to interfere with the judgment of the High Court. The High Court relied upon the judgment in Isha Marbles(supra) to grant relief to the First Respondent. It was held in the said judgment that an auction purchaser cannot be called upon to clear the past arrears. It was also held that a power connection to an auction purchaser cannot be withheld for the dues of the past owner. The High Court also referred to a judgment in Ahmedabad Electricity Company Limited(supra) wherein the ratio of the judgment in Isha Marbles case was reiterated, particularly with reference to a fresh connection for supply of electricity. In NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479 , the purchaser in an auction sale conducted by the official liquidator on "as is where is" and "whatever there is" basis was found not liable for payment of the electricity arrears. In the said case an advertisement was issued by the official liquidator for sale of moveable and immoveable property of M/s Konark Paper and Industries Limited on "as is where is" and whatever there is" basis. The auction purchaser applied for a fresh electricity connection to its unit which was denied on the ground of non payment of arrears by the past owner. After considering the judgments in Ahmedabad Electricity Company (supra) and Isha Marbles (supra), this Court held that the request of the auction purchaser for a fresh connection could not have been rejected.7. The facts of this case are similar to that of NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479. The tender/sale notice mentioned that the property was being auctioned on "as is where is" basis. The First Respondent applied for a fresh connection and he is in no way connected to the past owner. He has also not undertaken to pay the past arrears of the previous owner. | 0 | 947 | 386 | ### 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:
L. Nageswara Rao, J.1. The Writ Petition filed by Respondent No.1 challenging the action of the Appellants in not releasing the Low Tension (domestic) Power Supply was allowed by a Single Judge of the Andhra Pradesh High Court. The appeal filed by the Appellants was dismissed by the Division Bench. Challenging the legality and validity of the said judgment the Appellants have approached this Court by filing this appeal.2. The City Union Bank Limited, the Second Respondent herein issued a tender/sale notice under SARFAESI Act, 2002 for sale of land, plant and machinery in Survey Nos.168/169 in Bollaram village, Medak district which belonged to M/s J.T. Alloys Private Limited. The property was brought to sale due to default in payment of the outstanding loan amount. It was stated in the tender/sale notice dated 22.02.2006 that the sale would be on "as is where is" condition. The First Respondent participated in the auction and was declared the highest bidder in respect of dry land measuring 0.36 hectares in Survey No.168, Bollaram village. A certificate of sale was issued by the authorised officer of the Respondent-Bank on 12.04.2006 and the delivery and possession of the property sold was made free from all encumbrances known to the secured creditor on receipt of Rs. 1,12,50,000/-.3. Appellant No.3, the Superintending Engineer, Operation Circle Medak, informed the Respondent-Bank that an amount of Rs. 1,88,23,185/- was due towards electricity charges from M/s J.T. Alloys Private Limited. The Third Appellant requested the Bank to transfer the residual amount realised from the sale for adjustment towards arrears payable by M/s J.T.Alloys Private Limited. The Bank informed the Third Appellant that there was no amount left after utilisation of the sale proceeds towards its dues.4. The First Respondent applied for a Low Tension (domestic) electricity connection to the premises which he purchased in the auction conducted by the Second Respondent-Bank. As there was no response from the Appellants, the First Respondent filed a Writ Petition in the High Court of Andhra Pradesh. The said Writ Petition was allowed by a judgment dated 23.02.2007 on the ground that the Petitioner cannot be denied the power supply connection due to non payment of arrears payable by the previous owner of the property. The learned Single Judge of the High Court of Andhra Pradesh relied upon two judgments of this Court in Ahmedabad Electricity Co. Ltd. v. Gujarat Inns (P) Ltd. , (2004) 3 SCC 587 and Isha Marbles v. Bihar State Electricity Board , (1995) 2 SCC 648. 5. A Division Bench of the High Court confirmed the judgment of the Single Judge by dismissing the appeal filed by the Appellants. The Division Bench held that there was no evidence produced before the Court to show that the First Respondent had undertaken to discharge the liability of the previous consumer. It was also held that the Appellants cannot withhold the supply of power to Respondent No.1 on the specious ground that the arrears have not been cleared by the previous consumer. The Appellants, as stated earlier, have filed this appeal assailing the said judgment of the High Court.6. We have heard the learned counsel appearing for the parties and we are of the opinion that there is no reason to interfere with the judgment of the High Court. The High Court relied upon the judgment in Isha Marbles(supra) to grant relief to the First Respondent. It was held in the said judgment that an auction purchaser cannot be called upon to clear the past arrears. It was also held that a power connection to an auction purchaser cannot be withheld for the dues of the past owner. The High Court also referred to a judgment in Ahmedabad Electricity Company Limited(supra) wherein the ratio of the judgment in Isha Marbles case was reiterated, particularly with reference to a fresh connection for supply of electricity. In NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479 , the purchaser in an auction sale conducted by the official liquidator on "as is where is" and "whatever there is" basis was found not liable for payment of the electricity arrears. In the said case an advertisement was issued by the official liquidator for sale of moveable and immoveable property of M/s Konark Paper and Industries Limited on "as is where is" and whatever there is" basis. The auction purchaser applied for a fresh electricity connection to its unit which was denied on the ground of non payment of arrears by the past owner. After considering the judgments in Ahmedabad Electricity Company (supra) and Isha Marbles (supra), this Court held that the request of the auction purchaser for a fresh connection could not have been rejected.7. The facts of this case are similar to that of NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479. The tender/sale notice mentioned that the property was being auctioned on "as is where is" basis. The First Respondent applied for a fresh connection and he is in no way connected to the past owner. He has also not undertaken to pay the past arrears of the previous owner.
### Response:
0
### Explanation:
6. We have heard the learned counsel appearing for the parties and we are of the opinion that there is no reason to interfere with the judgment of the High Court. The High Court relied upon the judgment in Isha Marbles(supra) to grant relief to the First Respondent. It was held in the said judgment that an auction purchaser cannot be called upon to clear the past arrears. It was also held that a power connection to an auction purchaser cannot be withheld for the dues of the past owner. The High Court also referred to a judgment in Ahmedabad Electricity Company Limited(supra) wherein the ratio of the judgment in Isha Marbles case was reiterated, particularly with reference to a fresh connection for supply of electricity. In NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479 , the purchaser in an auction sale conducted by the official liquidator on "as is where is" and "whatever there is" basis was found not liable for payment of the electricity arrears. In the said case an advertisement was issued by the official liquidator for sale of moveable and immoveable property of M/s Konark Paper and Industries Limited on "as is where is" and whatever there is" basis. The auction purchaser applied for a fresh electricity connection to its unit which was denied on the ground of non payment of arrears by the past owner. After considering the judgments in Ahmedabad Electricity Company (supra) and Isha Marbles (supra), this Court held that the request of the auction purchaser for a fresh connection could not have been rejected.7. The facts of this case are similar to that of NESCO v. Raghunath Paper Mills (P) Ltd., (2012) 13 SCC 479. The tender/sale notice mentioned that the property was being auctioned on "as is where is" basis. The First Respondent applied for a fresh connection and he is in no way connected to the past owner. He has also not undertaken to pay the past arrears of the previous owner.
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The Godavari Sugar Mills Ltd Vs. Shri D. K. Worlikar | the said manufacture, and (2) all agricultural and industrial operation connected with the growing of sugarcane or the said manufacture, engaged in such concerns. Note: For the purposes of this notification all service or employment connected with the conduct of the above industry shall be deemed to be part of the industry when engaged in or by an employer engaged in that industry".5. It is significant that the notification applies not to sugar industry as such but to the manufacture of sugar and its by-products. If the expression "sugar industry" had been used it would have been possible to construe that expression in a broader sense having regard to the wide definition of the word "industry" prescribed in S. 2 (19) of the act; but the notification has deliberately adopted a different phraseology and has brought within its purview not the sugar industry as such but the manufacture of sugar and its by-products. Unfortunately the Labour Appellate Tribunal has read the notification as though it referred to the sugar industry as such. That is a serious infirmity in the decision of the Labour Appellate Tribunal.6. Besides, the inclusion of the two items specified in cls. (1) and (2) is also significant. Section 2 (19) (b) (i) shows that "industry" includes agriculture and agricultural operations. Now, if the manufacture of sugar and its by-products had the same meaning as the expression sugar industry, then the two items added by cls. (1) and (2) would have been included in the said expression by virtue of the definition of "industry" itself and the addition of the two clauses would have been superfluous. The fact that the two items have been included specifically clearly indicates that the first part of the notification would not have applied to them, and it is with a view to extend the scope of the said clause that the inclusive words introducing the two items have been used. This fact also shows the limited interpretation which must be put on the words "the manufacture of sugar and its by-products".7. It is true that the note added to the notification purports to include within the scope of the notification some cases of service and employment by the deeming process.Unfortunately the last clause in the note is unhappily worded and it is difficult to understand what exactly it was intended to mean. Even so, though by the first part of the note some kinds of service or employment are deemed to be part of the industry in question by virtue of the fact that they are connected with the conduct of the said industry, the latter part of the note requires that the said service or employment must be engaged in that industry. It is possible that the workers engaged in manuring or a clerk in the manure depot which is required to issue manure to the agricultural farm which grows sugarcane may for instance be included within the scope of the notification by virtue of the note; but it is difficult to see how the respondent, who is an employee in the head office at Bombay, can claim the benefit of this note.The addition made by the deeming clause on the strength of the connection of certain services and employments with the conduct of the industry is also controlled by the requirement that the said services or employments must be engaged in that industry so that connection with the industry has nevertheless to be established before the note can be applied to the respondent.8. It has been urged before us by Mr. Sastri, for the respondent, that at the head office there is accounts department, the establishment section, stores purchase section and legal department, and he pointed out that the machinery which is purchased for the industry is landed at Bombay, received by the head office and is then sent to the factories. In fact the factories and the offices attached to them are situated at Lakshmiwadi and Sakharwadi respectively and are separated by hundreds of miles from the head office at Bombay. The fact that the machinery required at the factories is received at the head office and has to be forwarded to the respective factories cannot, in our opinion, assist the respondent in contending that the head office itself and all the employees engaged in it fall within the note to the notification. The object of the notification appear to be to confine its benefit to service or employment which is connected with the manufacture of sugar and its by-products including the two items specified in cl. (1) and cl. (2). Subsidary services such as those we have indicated are also included by virtue of the note; but in our opinion it is difficult to extend the scope of the notification to the head office of the appellant. We must accordingly hold that the Labour Appellate Tribunal erred in law in holding that the case of the respondent was governed by the notification..9. Incidentally we would like to add that the registrar appointed under S. 11 of the Act has consistently refused to recognise the staff of the head office as coming under the notification, and it is common ground that the consistent practice in the matter so far is against the plea raised by the respondent . It is perfectly true that in construing the notification the prevailing practice can have no relevance; but if after construing the notification we come to the conclusion that the head office is outside the purview of the notification it would not be irrelevant to refer to the prevailing practice which happens to be consistent with the construction we have placed on the notification. It appears that in the courts below reference was made to a similar notification issued in respect of textile industry under S. 2, sub-s. (3) of the Act and the relevant decisions construing the said notification were cited. We do not think any useful purpose will be served by considering the said notification and the decisions thereunder. | 1[ds]It is common ground that if the notification applies to the case of the respondent the application made by him to the Labour Court would be competent and would have to be considered on the merits; on the other hand, if the said notification does not apply then the application is incompetent and must be dismissed in limine on that ground.It is significant that the notification applies not to sugar industry as such but to the manufacture of sugar and its by-products. If the expression "sugar industry" had been used it would have been possible to construe that expression in a broader sense having regard to the wide definition of the word "industry" prescribed in S. 2 (19) of the act; but the notification has deliberately adopted a different phraseology and has brought within its purview not the sugar industry as such but the manufacture of sugar and its by-products. Unfortunately the Labour Appellate Tribunal has read the notification as though it referred to the sugar industry as such. That is a serious infirmity in the decision of the Labour Appellate Tribunal.It is true that the note added to the notification purports to include within the scope of the notification some cases of service and employment by the deeming process.Unfortunately the last clause in the note is unhappily worded and it is difficult to understand what exactly it was intended to mean. Even so, though by the first part of the note some kinds of service or employment are deemed to be part of the industry in question by virtue of the fact that they are connected with the conduct of the said industry, the latter part of the note requires that the said service or employment must be engaged in that industry. It is possible that the workers engaged in manuring or a clerk in the manure depot which is required to issue manure to the agricultural farm which grows sugarcane may for instance be included within the scope of the notification by virtue of the note; but it is difficult to see how the respondent, who is an employee in the head office at Bombay, can claim the benefit of this note.The addition made by the deeming clause on the strength of the connection of certain services and employments with the conduct of the industry is also controlled by the requirement that the said services or employments must be engaged in that industry so that connection with the industry has nevertheless to be established before the note can be applied to thefact the factories and the offices attached to them are situated at Lakshmiwadi and Sakharwadi respectively and are separated by hundreds of miles from the head office at Bombay. The fact that the machinery required at the factories is received at the head office and has to be forwarded to the respective factories cannot, in our opinion, assist the respondent in contending that the head office itself and all the employees engaged in it fall within the note to the notification. The object of the notification appear to be to confine its benefit to service or employment which is connected with the manufacture of sugar and its by-products including the two items specified in cl. (1) and cl. (2). Subsidary services such as those we have indicated are also included by virtue of the note; but in our opinion it is difficult to extend the scope of the notification to the head office of the appellant. We must accordingly hold that the Labour Appellate Tribunal erred in law in holding that the case of the respondent was governed by the notification..9. Incidentally we would like to add that the registrar appointed under S. 11 of the Act has consistently refused to recognise the staff of the head office as coming under the notification, and it is common ground that the consistent practice in the matter so far is against the plea raised by the respondent . It is perfectly true that in construing the notification the prevailing practice can have no relevance; but if after construing the notification we come to the conclusion that the head office is outside the purview of the notification it would not be irrelevant to refer to the prevailing practice which happens to be consistent with the construction we have placed on the notification. It appears that in the courts below reference was made to a similar notification issued in respect of textile industry under S. 2, sub-s. (3) of the Act and the relevant decisions construing the said notification were cited. We do not think any useful purpose will be served by considering the said notification and the decisions thereunder. | 1 | 2,008 | 827 | ### 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 said manufacture, and (2) all agricultural and industrial operation connected with the growing of sugarcane or the said manufacture, engaged in such concerns. Note: For the purposes of this notification all service or employment connected with the conduct of the above industry shall be deemed to be part of the industry when engaged in or by an employer engaged in that industry".5. It is significant that the notification applies not to sugar industry as such but to the manufacture of sugar and its by-products. If the expression "sugar industry" had been used it would have been possible to construe that expression in a broader sense having regard to the wide definition of the word "industry" prescribed in S. 2 (19) of the act; but the notification has deliberately adopted a different phraseology and has brought within its purview not the sugar industry as such but the manufacture of sugar and its by-products. Unfortunately the Labour Appellate Tribunal has read the notification as though it referred to the sugar industry as such. That is a serious infirmity in the decision of the Labour Appellate Tribunal.6. Besides, the inclusion of the two items specified in cls. (1) and (2) is also significant. Section 2 (19) (b) (i) shows that "industry" includes agriculture and agricultural operations. Now, if the manufacture of sugar and its by-products had the same meaning as the expression sugar industry, then the two items added by cls. (1) and (2) would have been included in the said expression by virtue of the definition of "industry" itself and the addition of the two clauses would have been superfluous. The fact that the two items have been included specifically clearly indicates that the first part of the notification would not have applied to them, and it is with a view to extend the scope of the said clause that the inclusive words introducing the two items have been used. This fact also shows the limited interpretation which must be put on the words "the manufacture of sugar and its by-products".7. It is true that the note added to the notification purports to include within the scope of the notification some cases of service and employment by the deeming process.Unfortunately the last clause in the note is unhappily worded and it is difficult to understand what exactly it was intended to mean. Even so, though by the first part of the note some kinds of service or employment are deemed to be part of the industry in question by virtue of the fact that they are connected with the conduct of the said industry, the latter part of the note requires that the said service or employment must be engaged in that industry. It is possible that the workers engaged in manuring or a clerk in the manure depot which is required to issue manure to the agricultural farm which grows sugarcane may for instance be included within the scope of the notification by virtue of the note; but it is difficult to see how the respondent, who is an employee in the head office at Bombay, can claim the benefit of this note.The addition made by the deeming clause on the strength of the connection of certain services and employments with the conduct of the industry is also controlled by the requirement that the said services or employments must be engaged in that industry so that connection with the industry has nevertheless to be established before the note can be applied to the respondent.8. It has been urged before us by Mr. Sastri, for the respondent, that at the head office there is accounts department, the establishment section, stores purchase section and legal department, and he pointed out that the machinery which is purchased for the industry is landed at Bombay, received by the head office and is then sent to the factories. In fact the factories and the offices attached to them are situated at Lakshmiwadi and Sakharwadi respectively and are separated by hundreds of miles from the head office at Bombay. The fact that the machinery required at the factories is received at the head office and has to be forwarded to the respective factories cannot, in our opinion, assist the respondent in contending that the head office itself and all the employees engaged in it fall within the note to the notification. The object of the notification appear to be to confine its benefit to service or employment which is connected with the manufacture of sugar and its by-products including the two items specified in cl. (1) and cl. (2). Subsidary services such as those we have indicated are also included by virtue of the note; but in our opinion it is difficult to extend the scope of the notification to the head office of the appellant. We must accordingly hold that the Labour Appellate Tribunal erred in law in holding that the case of the respondent was governed by the notification..9. Incidentally we would like to add that the registrar appointed under S. 11 of the Act has consistently refused to recognise the staff of the head office as coming under the notification, and it is common ground that the consistent practice in the matter so far is against the plea raised by the respondent . It is perfectly true that in construing the notification the prevailing practice can have no relevance; but if after construing the notification we come to the conclusion that the head office is outside the purview of the notification it would not be irrelevant to refer to the prevailing practice which happens to be consistent with the construction we have placed on the notification. It appears that in the courts below reference was made to a similar notification issued in respect of textile industry under S. 2, sub-s. (3) of the Act and the relevant decisions construing the said notification were cited. We do not think any useful purpose will be served by considering the said notification and the decisions thereunder.
### Response:
1
### Explanation:
It is common ground that if the notification applies to the case of the respondent the application made by him to the Labour Court would be competent and would have to be considered on the merits; on the other hand, if the said notification does not apply then the application is incompetent and must be dismissed in limine on that ground.It is significant that the notification applies not to sugar industry as such but to the manufacture of sugar and its by-products. If the expression "sugar industry" had been used it would have been possible to construe that expression in a broader sense having regard to the wide definition of the word "industry" prescribed in S. 2 (19) of the act; but the notification has deliberately adopted a different phraseology and has brought within its purview not the sugar industry as such but the manufacture of sugar and its by-products. Unfortunately the Labour Appellate Tribunal has read the notification as though it referred to the sugar industry as such. That is a serious infirmity in the decision of the Labour Appellate Tribunal.It is true that the note added to the notification purports to include within the scope of the notification some cases of service and employment by the deeming process.Unfortunately the last clause in the note is unhappily worded and it is difficult to understand what exactly it was intended to mean. Even so, though by the first part of the note some kinds of service or employment are deemed to be part of the industry in question by virtue of the fact that they are connected with the conduct of the said industry, the latter part of the note requires that the said service or employment must be engaged in that industry. It is possible that the workers engaged in manuring or a clerk in the manure depot which is required to issue manure to the agricultural farm which grows sugarcane may for instance be included within the scope of the notification by virtue of the note; but it is difficult to see how the respondent, who is an employee in the head office at Bombay, can claim the benefit of this note.The addition made by the deeming clause on the strength of the connection of certain services and employments with the conduct of the industry is also controlled by the requirement that the said services or employments must be engaged in that industry so that connection with the industry has nevertheless to be established before the note can be applied to thefact the factories and the offices attached to them are situated at Lakshmiwadi and Sakharwadi respectively and are separated by hundreds of miles from the head office at Bombay. The fact that the machinery required at the factories is received at the head office and has to be forwarded to the respective factories cannot, in our opinion, assist the respondent in contending that the head office itself and all the employees engaged in it fall within the note to the notification. The object of the notification appear to be to confine its benefit to service or employment which is connected with the manufacture of sugar and its by-products including the two items specified in cl. (1) and cl. (2). Subsidary services such as those we have indicated are also included by virtue of the note; but in our opinion it is difficult to extend the scope of the notification to the head office of the appellant. We must accordingly hold that the Labour Appellate Tribunal erred in law in holding that the case of the respondent was governed by the notification..9. Incidentally we would like to add that the registrar appointed under S. 11 of the Act has consistently refused to recognise the staff of the head office as coming under the notification, and it is common ground that the consistent practice in the matter so far is against the plea raised by the respondent . It is perfectly true that in construing the notification the prevailing practice can have no relevance; but if after construing the notification we come to the conclusion that the head office is outside the purview of the notification it would not be irrelevant to refer to the prevailing practice which happens to be consistent with the construction we have placed on the notification. It appears that in the courts below reference was made to a similar notification issued in respect of textile industry under S. 2, sub-s. (3) of the Act and the relevant decisions construing the said notification were cited. We do not think any useful purpose will be served by considering the said notification and the decisions thereunder.
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Shri Chatrasinghji Kesari Singhji Thakore Vs. Commissioner Of Income-Tax, Bombay | the terms of the lease claim reimbursement, must therefore be regarded as income within the meaning of the Indian Income-tax Act, and unless specially exempted, liable to tax. The appellant did not purport to collect local fund cess on behalf of the State Government: nor did the Syndicate pay the amount to him as an agent of the Government. The Syndicate merely sought to discharge what it believed was its contractual obligation under the indenture of lease, and in doing so, it made payments which exceeded the local fund cess payable by the appellant. 8. We are unable to hold that the Syndicate was an inferior holder under the appellant. The appellant was the holder of the land and he had granted a lease in respect of the land to the Syndicate, and our attention has not been invited to any provision of the Bombay Land Revenue Code, 1879, which imposes liability to pay local fund cess upon the lessee who holds land under a lease from the landholder. Liability to pay land revenue and the local fund cess is imposed by the Bombay Land Revenue Code upon the appellant. Under the terms of Part VII Cl. 1 of the indenture of lease, the Syndicate had agreed to pay to the appellant the amount of land revenue and local fund cess which the latter may have to pay to the Government. But by collecting the amount from the Syndicate under the terms of his contract, the appellant was not constituted an agent of the Government for recovering either the land revenue or local fund cess. 9. There is nothing in the Income-tax Act which prevents the Revenue authorities from determining the quantum of the amount which is payable by the appellant as local fund cess, when that question properly arises before them in the course of proceedings for assessment. The Income-tax Officer is within the limits assigned to him under the Act a tribunal of exclusive jurisdiction for the purpose of assessment of income-tax. He has under the Act to decide whether a particular receipt is income, and it is not predicated that he must make some person or body other than the assessee who may be concerned with that receipt as a party to the proceeding before he decides that question. As between the State and the assessee it is his function alone to determine whether receipt is income and is taxable. The determination by the Income-tax Officer may be questioned in proceedings before superior tribunals which are permitted by the Act, but the Income-tax Officer cannot be prevented from determining a question which properly arises before him for the purpose of assessment of tax, merely because his determination may not bind some other body or person qua the assessee. 10. It is maintained by counsel for the appellant that in the "Manual of Revenue Accounts" issued under the authority of the Government of Bombay it is recorded that the local fund in respect of land held under a mining lease is a fraction of the aggregate amount of rent and royalties under the lease. This plea is based upon a complete misconception of what is stated in the Manual of Revenue Accounts, 1951. Under the head "Miscellaneous Land Revenue" at p. 41 certain directions are given about the entries to be made in the Tharavband in respect of miscellaneous fluctuating revenue." The Manual after setting out heads of fixed revenue proceeds to set out the following heads of fluctuating revenue: (i) Carrying Local Fund, and (ii) Free of Local Fund. Under the head fluctuating revenue "Carrying Local Fund" are non-agriculture rent or revenue from agriculturally assessed or unassessed lands for back years, for broken periods, or short periods less than five years and fees for brick kilns and lime kilns erected on Government waste lands; (2) Lump commutation-payments not being commutations in perpetuity of land revenue for building or any other non-agricultural purpose, including assessment for unauthorised occupation, and fine when levied for non-agricultural uses with permission, but not including fines levied as penalties, and "(2-A) Rent and royalties under mining leases (usually collected at T)." But these are mere instructions to the village officers relating to the heads of revenue which are "to pass through the Tharavband". By the instructions it is not sought to be conveyed that local fund cess in respect of non-agricultural incomes subject to local fund such as rent and royalties is to be levied at a rate different from the rate prescribed by the statute. The Bombay Local Boards Act 1923 expressly provides that local fund cess is to be levied on land revenue whether the land is used for purposes agricultural or non-agriculture at the prescribed rate and by executive instruction the Act cannot be modified and has not been modified. 11. It was said that the Syndicate may seek to recover from the appellant the excess amounts paid by it towards local fund cess. We were told at the Bar that after the proceeding for assessment in these appeals reached the High Court, the Syndicate has filed a suit in the Civil Court against the appellant to recover the amounts paid by it. We are not in this case concerned with the merits of that claim. The appellant has received certain amount under a contract with the Syndicate, and if that amount was income, the fact that the person who paid it may claim refund will not deprive it of its character of income in the year in which it was received. 12. The contention that this income was of a "casual and non-recurring nature" was abandoned before the Tribunal. It cannot be said that the receipt was produced by chance or was accidental, fortuitous or from unforeseen sources of income. Assuming that the amounts sought to be included as income were paid as a result of some mistake on the part of the Syndicate, they have not the characteristic of casualness, nor is it suggested that they are non-recurring. | 0[ds]9. There is nothing in the Income-tax Act which prevents the Revenue authorities from determining the quantum of the amount which is payable by the appellant as local fund cess, when that question properly arises before them in the course of proceedings for assessment. The Income-tax Officer is within the limits assigned to him under the Act a tribunal of exclusive jurisdiction for the purpose of assessment of income-tax. He has under the Act to decide whether a particular receipt is income, and it is not predicated that he must make some person or body other than the assessee who may be concerned with that receipt as a party to the proceeding before he decides that question. As between the State and the assessee it is his function alone to determine whether receipt is income and is taxable. The determination by the Income-tax Officer may be questioned in proceedings before superior tribunals which are permitted by the Act, but the Income-tax Officer cannot be prevented from determining a question which properly arises before him for the purpose of assessment of tax, merely because his determination may not bind some other body or person qua the assessee10. It is maintained by counsel for the appellant that in the "Manual of Revenue Accounts" issued under the authority of the Government of Bombay it is recorded that the local fund in respect of land held under a mining lease is a fraction of the aggregate amount of rent and royalties under the lease. This plea is based upon a complete misconception of what is stated in the Manual of Revenue Accounts, 1951. Under the head "Miscellaneous Land Revenue" at p. 41 certain directions are given about the entries to be made in the Tharavband in respect of miscellaneous fluctuating revenue." The Manual after setting out heads of fixed revenue proceeds to set out the following heads of fluctuating revenue:(i) Carrying Local Fund, and(ii) Free of Local FundUnder the head fluctuating revenue "Carrying Local Fund" are non-agriculture rent or revenue from agriculturally assessed or unassessed lands for back years, for broken periods, or short periods less than five years and fees for brick kilns and lime kilns erected on Government waste lands; (2) Lump commutation-payments not being commutations in perpetuity of land revenue for building or any other non-agricultural purpose, including assessment for unauthorised occupation, and fine when levied for non-agricultural uses with permission, but not including fines levied as penalties, and "(2-A) Rent and royalties under mining leases (usually collected at T)." But these are mere instructions to the village officers relating to the heads of revenue which are "to pass through the Tharavband". By the instructions it is not sought to be conveyed that local fund cess in respect of non-agricultural incomes subject to local fund such as rent and royalties is to be levied at a rate different from the rate prescribed by the statute. The Bombay Local Boards Act 1923 expressly provides that local fund cess is to be levied on land revenue whether the land is used for purposes agricultural or non-agriculture at the prescribed rate and by executive instruction the Act cannot be modified and has not been modified11. It was said that the Syndicate may seek to recover from the appellant the excess amounts paid by it towards local fund cess. We were told at the Bar that after the proceeding for assessment in these appeals reached the High Court, the Syndicate has filed a suit in the Civil Court against the appellant to recover the amounts paid by it. We are not in this case concerned with the merits of that claim. The appellant has received certain amount under a contract with the Syndicate, and if that amount was income, the fact that the person who paid it may claim refund will not deprive it of its character of income in the year in which it was received12. The contention that this income was of a "casual and non-recurring nature" was abandoned before the Tribunal. It cannot be said that the receipt was produced by chance or was accidental, fortuitous or from unforeseen sources of income. Assuming that the amounts sought to be included as income were paid as a result of some mistake on the part of the Syndicate, they have not the characteristic of casualness, nor is it suggested that they are non-recurring. | 0 | 3,041 | 801 | ### 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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the terms of the lease claim reimbursement, must therefore be regarded as income within the meaning of the Indian Income-tax Act, and unless specially exempted, liable to tax. The appellant did not purport to collect local fund cess on behalf of the State Government: nor did the Syndicate pay the amount to him as an agent of the Government. The Syndicate merely sought to discharge what it believed was its contractual obligation under the indenture of lease, and in doing so, it made payments which exceeded the local fund cess payable by the appellant. 8. We are unable to hold that the Syndicate was an inferior holder under the appellant. The appellant was the holder of the land and he had granted a lease in respect of the land to the Syndicate, and our attention has not been invited to any provision of the Bombay Land Revenue Code, 1879, which imposes liability to pay local fund cess upon the lessee who holds land under a lease from the landholder. Liability to pay land revenue and the local fund cess is imposed by the Bombay Land Revenue Code upon the appellant. Under the terms of Part VII Cl. 1 of the indenture of lease, the Syndicate had agreed to pay to the appellant the amount of land revenue and local fund cess which the latter may have to pay to the Government. But by collecting the amount from the Syndicate under the terms of his contract, the appellant was not constituted an agent of the Government for recovering either the land revenue or local fund cess. 9. There is nothing in the Income-tax Act which prevents the Revenue authorities from determining the quantum of the amount which is payable by the appellant as local fund cess, when that question properly arises before them in the course of proceedings for assessment. The Income-tax Officer is within the limits assigned to him under the Act a tribunal of exclusive jurisdiction for the purpose of assessment of income-tax. He has under the Act to decide whether a particular receipt is income, and it is not predicated that he must make some person or body other than the assessee who may be concerned with that receipt as a party to the proceeding before he decides that question. As between the State and the assessee it is his function alone to determine whether receipt is income and is taxable. The determination by the Income-tax Officer may be questioned in proceedings before superior tribunals which are permitted by the Act, but the Income-tax Officer cannot be prevented from determining a question which properly arises before him for the purpose of assessment of tax, merely because his determination may not bind some other body or person qua the assessee. 10. It is maintained by counsel for the appellant that in the "Manual of Revenue Accounts" issued under the authority of the Government of Bombay it is recorded that the local fund in respect of land held under a mining lease is a fraction of the aggregate amount of rent and royalties under the lease. This plea is based upon a complete misconception of what is stated in the Manual of Revenue Accounts, 1951. Under the head "Miscellaneous Land Revenue" at p. 41 certain directions are given about the entries to be made in the Tharavband in respect of miscellaneous fluctuating revenue." The Manual after setting out heads of fixed revenue proceeds to set out the following heads of fluctuating revenue: (i) Carrying Local Fund, and (ii) Free of Local Fund. Under the head fluctuating revenue "Carrying Local Fund" are non-agriculture rent or revenue from agriculturally assessed or unassessed lands for back years, for broken periods, or short periods less than five years and fees for brick kilns and lime kilns erected on Government waste lands; (2) Lump commutation-payments not being commutations in perpetuity of land revenue for building or any other non-agricultural purpose, including assessment for unauthorised occupation, and fine when levied for non-agricultural uses with permission, but not including fines levied as penalties, and "(2-A) Rent and royalties under mining leases (usually collected at T)." But these are mere instructions to the village officers relating to the heads of revenue which are "to pass through the Tharavband". By the instructions it is not sought to be conveyed that local fund cess in respect of non-agricultural incomes subject to local fund such as rent and royalties is to be levied at a rate different from the rate prescribed by the statute. The Bombay Local Boards Act 1923 expressly provides that local fund cess is to be levied on land revenue whether the land is used for purposes agricultural or non-agriculture at the prescribed rate and by executive instruction the Act cannot be modified and has not been modified. 11. It was said that the Syndicate may seek to recover from the appellant the excess amounts paid by it towards local fund cess. We were told at the Bar that after the proceeding for assessment in these appeals reached the High Court, the Syndicate has filed a suit in the Civil Court against the appellant to recover the amounts paid by it. We are not in this case concerned with the merits of that claim. The appellant has received certain amount under a contract with the Syndicate, and if that amount was income, the fact that the person who paid it may claim refund will not deprive it of its character of income in the year in which it was received. 12. The contention that this income was of a "casual and non-recurring nature" was abandoned before the Tribunal. It cannot be said that the receipt was produced by chance or was accidental, fortuitous or from unforeseen sources of income. Assuming that the amounts sought to be included as income were paid as a result of some mistake on the part of the Syndicate, they have not the characteristic of casualness, nor is it suggested that they are non-recurring.
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9. There is nothing in the Income-tax Act which prevents the Revenue authorities from determining the quantum of the amount which is payable by the appellant as local fund cess, when that question properly arises before them in the course of proceedings for assessment. The Income-tax Officer is within the limits assigned to him under the Act a tribunal of exclusive jurisdiction for the purpose of assessment of income-tax. He has under the Act to decide whether a particular receipt is income, and it is not predicated that he must make some person or body other than the assessee who may be concerned with that receipt as a party to the proceeding before he decides that question. As between the State and the assessee it is his function alone to determine whether receipt is income and is taxable. The determination by the Income-tax Officer may be questioned in proceedings before superior tribunals which are permitted by the Act, but the Income-tax Officer cannot be prevented from determining a question which properly arises before him for the purpose of assessment of tax, merely because his determination may not bind some other body or person qua the assessee10. It is maintained by counsel for the appellant that in the "Manual of Revenue Accounts" issued under the authority of the Government of Bombay it is recorded that the local fund in respect of land held under a mining lease is a fraction of the aggregate amount of rent and royalties under the lease. This plea is based upon a complete misconception of what is stated in the Manual of Revenue Accounts, 1951. Under the head "Miscellaneous Land Revenue" at p. 41 certain directions are given about the entries to be made in the Tharavband in respect of miscellaneous fluctuating revenue." The Manual after setting out heads of fixed revenue proceeds to set out the following heads of fluctuating revenue:(i) Carrying Local Fund, and(ii) Free of Local FundUnder the head fluctuating revenue "Carrying Local Fund" are non-agriculture rent or revenue from agriculturally assessed or unassessed lands for back years, for broken periods, or short periods less than five years and fees for brick kilns and lime kilns erected on Government waste lands; (2) Lump commutation-payments not being commutations in perpetuity of land revenue for building or any other non-agricultural purpose, including assessment for unauthorised occupation, and fine when levied for non-agricultural uses with permission, but not including fines levied as penalties, and "(2-A) Rent and royalties under mining leases (usually collected at T)." But these are mere instructions to the village officers relating to the heads of revenue which are "to pass through the Tharavband". By the instructions it is not sought to be conveyed that local fund cess in respect of non-agricultural incomes subject to local fund such as rent and royalties is to be levied at a rate different from the rate prescribed by the statute. The Bombay Local Boards Act 1923 expressly provides that local fund cess is to be levied on land revenue whether the land is used for purposes agricultural or non-agriculture at the prescribed rate and by executive instruction the Act cannot be modified and has not been modified11. It was said that the Syndicate may seek to recover from the appellant the excess amounts paid by it towards local fund cess. We were told at the Bar that after the proceeding for assessment in these appeals reached the High Court, the Syndicate has filed a suit in the Civil Court against the appellant to recover the amounts paid by it. We are not in this case concerned with the merits of that claim. The appellant has received certain amount under a contract with the Syndicate, and if that amount was income, the fact that the person who paid it may claim refund will not deprive it of its character of income in the year in which it was received12. The contention that this income was of a "casual and non-recurring nature" was abandoned before the Tribunal. It cannot be said that the receipt was produced by chance or was accidental, fortuitous or from unforeseen sources of income. Assuming that the amounts sought to be included as income were paid as a result of some mistake on the part of the Syndicate, they have not the characteristic of casualness, nor is it suggested that they are non-recurring.
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The Collector Of Customs, Madras Vs. K. Ganga Setty | open to judicial review and had ultimately to be decided by the Courts, (2) in the case before the Court, Entry 32 reading "grain" had, in the absence of any specific entry regarding oats, to be read as excluding all grains which would be "fodder" i.e., which were usually used as cattle or animal feed, and that as the respondent had imported the oats as horse feed the proper item within which the goods imported fell was Item 42, Fodder etc.6. In arriving at this conclusion the learned Judges referred to the answer of the Deputy Chief Controller to the query by the respondent to which we have adverted earlier, as a circumstance indicative of the doubts entertained by the departmental authorities themselves on this matter.7. With very great respect to the learned Judges we are unable to agree with them both as regards the function and jurisdiction of the Court in matters of this type, as well as in their actual construction of the relevant entries in the Import Trade Circular. As regards the limits of the jurisdiction of the Court it is sufficient to refer to the decision in Venkateswaran v. Wadhwani [1983 (13) E.L.T. 1327 (S.C.)]. That was a case where a party moved the High Court under Article 226 of the Constitution, and not as here under Section 45 of the Specific Relief Act under which the power of the court to interfere is certainly narrower and not wider. This Court proceeded on the basis that it is primarily for the Import Control authorities to determine the head or entry under which any particular commodity fell; but that if in doing so, these authorities adopted a construction which no reasonable person could adopt, i.e., if the construction was perverse, then it was a case in which the Court was competent to interfere. In other words, if there are two constructions which an entry could reasonably bear, and one of them which was in favour of Revenue was adopted, the Court has no jurisdiction to interfere merely because the other interpretation favourable to the subject appeals to the Court as the better one to adopt.8. In the present case it could not be contended that uncrushed oats did not answer the description of "grain" and therefore the decision of the Customs authorities holding that the oats imported fell within Item 32 could not be said to be a view which on no reasonable interpretation could be entertained. In other words, the conclusion or decision of the Customs authorities was rationally supportable. We consider that even if there was no specific reference to "oats" in Entry 32, any particular species of grain cannot be excluded merely because it is capable of being used as cattle or horse feed. The word "fodder" is defined in the Oxford Dictionary as "dried food, hay, straw, etc., for stall feeding cattle." Without resorting to Johnsons famous definition of "oats" in his Dictionary, it is sufficient to point out that oats, though they may serve as food for horses, is also used as human food, in other words it is not by its nature or characteristic capable of serving solely as food for animals and incapable of use in the human dietary.9. For instance, all coarse grains like Ragi and Khambu serve as food for man as well as for cattle. The mere fact therefore that a grain is capable of being used as horse or other cattle feed does not make it "fodder" excluding it from the category of grain to which it admittedly belongs. The decision of the Assistant Collector and of the Collector on appeal holding the oats imported by the respondent to be grain cannot therefore be characterised as perverse or mala fide and in the circumstances we consider that the learned judges of the High Court erred in interfering with the order of the appellant.10. In this particular case, however, the matter is placed beyond the pale of controversy by the specific reference to "oats" in Entry 32 where "grain" is classified into two categories, "oats" and "other grains". It is apparent that unfortunately the attention of the learned Judges was not drawn to the entry in full, because, in the course of the judgment they point out that the construction of Entry 42 would be different if there had been a specific reference to oats in Entry 32.11. Learned Counsel for the respondent laid some stress on the respondent having been misled by the answer of the Deputy Chief Controller of Exports to a query as regards the scope of Entry 42. The answer which was stated to have misled was in these terms :"Feed oats classifiable under serial 42 of Part IV can be imported under Open General Licence No. XXIII."12. An answer by no means a model of clarity. This letter is dated September 14, 1951, and it is the case of the respondent that he placed an order for the import of "feed oats" because he was led to believe that for its import no licence was necessary. The contract for the purchase of the goods for import was entered into in the beginning of June, 1952, but before that date the Deputy Chief Controller wrote a further letter to the respondent on January 1, 1952, clarifying the answer he gave in his earlier letter, and pointing out that whereas if the oats were in whole grain it would fall within Item 32 but if the same was crushed, it would be "fodder" within Item 42. The respondent however, denied having received this letter and there is no specific finding on this point by the learned Judges of the High Court. We do not propose to record any finding either. We are drawing attention to this matter merely for pointing out that it is a matter which the authorities could properly take into account in modifying, if they consider that the respondent has really been misled, the quantum of penalty imposed on the respondent.13. | 1[ds]8. In the present case it could not be contended that uncrushed oats did not answer the description of "grain" and therefore the decision of the Customs authorities holding that the oats imported fell within Item 32 could not be said to be a view which on no reasonable interpretation could be entertained. In other words, the conclusion or decision of the Customs authorities was rationally supportable. We consider that even if there was no specific reference to "oats" in Entry 32, any particular species of grain cannot be excluded merely because it is capable of being used as cattle or horse feed. The word "fodder" is defined in the Oxford Dictionary as "dried food, hay, straw, etc., for stall feeding cattle." Without resorting to Johnsons famous definition of "oats" in his Dictionary, it is sufficient to point out that oats, though they may serve as food for horses, is also used as human food, in other words it is not by its nature or characteristic capable of serving solely as food for animals and incapable of use in the human dietary.For instance, all coarse grains like Ragi and Khambu serve as food for man as well as for cattle. The mere fact therefore that a grain is capable of being used as horse or other cattle feed does not make it "fodder" excluding it from the category of grain to which it admittedly belongs. The decision of the Assistant Collector and of the Collector on appeal holding the oats imported by the respondent to be grain cannot therefore be characterised as perverse or mala fide and in the circumstances we consider that the learned judges of the High Court erred in interfering with the order of theletter is dated September 14, 1951, and it is the case of the respondent that he placed an order for the import of "feed oats" because he was led to believe that for its import no licence was necessary. The contract for the purchase of the goods for import was entered into in the beginning of June, 1952, but before that date the Deputy Chief Controller wrote a further letter to the respondent on January 1, 1952, clarifying the answer he gave in his earlier letter, and pointing out that whereas if the oats were in whole grain it would fall within Item 32 but if the same was crushed, it would be "fodder" within Item 42. The respondent however, denied having received this letter and there is no specific finding on this point by the learned Judges of the High Court. We do not propose to record any finding either. We are drawing attention to this matter merely for pointing out that it is a matter which the authorities could properly take into account in modifying, if they consider that the respondent has really been misled, the quantum of penalty imposed on the respondent. | 1 | 1,987 | 538 | ### 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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open to judicial review and had ultimately to be decided by the Courts, (2) in the case before the Court, Entry 32 reading "grain" had, in the absence of any specific entry regarding oats, to be read as excluding all grains which would be "fodder" i.e., which were usually used as cattle or animal feed, and that as the respondent had imported the oats as horse feed the proper item within which the goods imported fell was Item 42, Fodder etc.6. In arriving at this conclusion the learned Judges referred to the answer of the Deputy Chief Controller to the query by the respondent to which we have adverted earlier, as a circumstance indicative of the doubts entertained by the departmental authorities themselves on this matter.7. With very great respect to the learned Judges we are unable to agree with them both as regards the function and jurisdiction of the Court in matters of this type, as well as in their actual construction of the relevant entries in the Import Trade Circular. As regards the limits of the jurisdiction of the Court it is sufficient to refer to the decision in Venkateswaran v. Wadhwani [1983 (13) E.L.T. 1327 (S.C.)]. That was a case where a party moved the High Court under Article 226 of the Constitution, and not as here under Section 45 of the Specific Relief Act under which the power of the court to interfere is certainly narrower and not wider. This Court proceeded on the basis that it is primarily for the Import Control authorities to determine the head or entry under which any particular commodity fell; but that if in doing so, these authorities adopted a construction which no reasonable person could adopt, i.e., if the construction was perverse, then it was a case in which the Court was competent to interfere. In other words, if there are two constructions which an entry could reasonably bear, and one of them which was in favour of Revenue was adopted, the Court has no jurisdiction to interfere merely because the other interpretation favourable to the subject appeals to the Court as the better one to adopt.8. In the present case it could not be contended that uncrushed oats did not answer the description of "grain" and therefore the decision of the Customs authorities holding that the oats imported fell within Item 32 could not be said to be a view which on no reasonable interpretation could be entertained. In other words, the conclusion or decision of the Customs authorities was rationally supportable. We consider that even if there was no specific reference to "oats" in Entry 32, any particular species of grain cannot be excluded merely because it is capable of being used as cattle or horse feed. The word "fodder" is defined in the Oxford Dictionary as "dried food, hay, straw, etc., for stall feeding cattle." Without resorting to Johnsons famous definition of "oats" in his Dictionary, it is sufficient to point out that oats, though they may serve as food for horses, is also used as human food, in other words it is not by its nature or characteristic capable of serving solely as food for animals and incapable of use in the human dietary.9. For instance, all coarse grains like Ragi and Khambu serve as food for man as well as for cattle. The mere fact therefore that a grain is capable of being used as horse or other cattle feed does not make it "fodder" excluding it from the category of grain to which it admittedly belongs. The decision of the Assistant Collector and of the Collector on appeal holding the oats imported by the respondent to be grain cannot therefore be characterised as perverse or mala fide and in the circumstances we consider that the learned judges of the High Court erred in interfering with the order of the appellant.10. In this particular case, however, the matter is placed beyond the pale of controversy by the specific reference to "oats" in Entry 32 where "grain" is classified into two categories, "oats" and "other grains". It is apparent that unfortunately the attention of the learned Judges was not drawn to the entry in full, because, in the course of the judgment they point out that the construction of Entry 42 would be different if there had been a specific reference to oats in Entry 32.11. Learned Counsel for the respondent laid some stress on the respondent having been misled by the answer of the Deputy Chief Controller of Exports to a query as regards the scope of Entry 42. The answer which was stated to have misled was in these terms :"Feed oats classifiable under serial 42 of Part IV can be imported under Open General Licence No. XXIII."12. An answer by no means a model of clarity. This letter is dated September 14, 1951, and it is the case of the respondent that he placed an order for the import of "feed oats" because he was led to believe that for its import no licence was necessary. The contract for the purchase of the goods for import was entered into in the beginning of June, 1952, but before that date the Deputy Chief Controller wrote a further letter to the respondent on January 1, 1952, clarifying the answer he gave in his earlier letter, and pointing out that whereas if the oats were in whole grain it would fall within Item 32 but if the same was crushed, it would be "fodder" within Item 42. The respondent however, denied having received this letter and there is no specific finding on this point by the learned Judges of the High Court. We do not propose to record any finding either. We are drawing attention to this matter merely for pointing out that it is a matter which the authorities could properly take into account in modifying, if they consider that the respondent has really been misled, the quantum of penalty imposed on the respondent.13.
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1
### Explanation:
8. In the present case it could not be contended that uncrushed oats did not answer the description of "grain" and therefore the decision of the Customs authorities holding that the oats imported fell within Item 32 could not be said to be a view which on no reasonable interpretation could be entertained. In other words, the conclusion or decision of the Customs authorities was rationally supportable. We consider that even if there was no specific reference to "oats" in Entry 32, any particular species of grain cannot be excluded merely because it is capable of being used as cattle or horse feed. The word "fodder" is defined in the Oxford Dictionary as "dried food, hay, straw, etc., for stall feeding cattle." Without resorting to Johnsons famous definition of "oats" in his Dictionary, it is sufficient to point out that oats, though they may serve as food for horses, is also used as human food, in other words it is not by its nature or characteristic capable of serving solely as food for animals and incapable of use in the human dietary.For instance, all coarse grains like Ragi and Khambu serve as food for man as well as for cattle. The mere fact therefore that a grain is capable of being used as horse or other cattle feed does not make it "fodder" excluding it from the category of grain to which it admittedly belongs. The decision of the Assistant Collector and of the Collector on appeal holding the oats imported by the respondent to be grain cannot therefore be characterised as perverse or mala fide and in the circumstances we consider that the learned judges of the High Court erred in interfering with the order of theletter is dated September 14, 1951, and it is the case of the respondent that he placed an order for the import of "feed oats" because he was led to believe that for its import no licence was necessary. The contract for the purchase of the goods for import was entered into in the beginning of June, 1952, but before that date the Deputy Chief Controller wrote a further letter to the respondent on January 1, 1952, clarifying the answer he gave in his earlier letter, and pointing out that whereas if the oats were in whole grain it would fall within Item 32 but if the same was crushed, it would be "fodder" within Item 42. The respondent however, denied having received this letter and there is no specific finding on this point by the learned Judges of the High Court. We do not propose to record any finding either. We are drawing attention to this matter merely for pointing out that it is a matter which the authorities could properly take into account in modifying, if they consider that the respondent has really been misled, the quantum of penalty imposed on the respondent.
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The Dooars Tea Co., Ltd Vs. Commissioner Of Agricultural,Income-Tax, West Bengal | to be included within the definition of income under S. 2(1) (b) we apprehend that the whole clause would have been very differently worded. Where income derived from sale was intended to be prescribed the Legislature has done so in terms by cl. (iii) of S. 2(1)(b). Where the marketable condition of the produce resulting from the employment of the specified processes and income derived from the adoption of such processes was intended to be included in the income the Legislature has done so by cl. (ii); and so those two cases having been specifically provided for by the two respective clauses there would be no justification for introducing the concept of sale in construing cl. (i) of S. 2(1)(b). The words in S. 2(1)(b) (i) are, in our opinion, wide, plain and unambiguous and they cannot be construed to exclude agricultural produce used by the appellant for its business. In this connection we may incidentally refer to the provisions of sub-cls. (i), (ii) and (iii) of S. 7(1) of the Act which provide for the computation of tax and allowances under the head "agricultural income from agriculture". These three sub-clauses in terms correspond to the three sub-clauses of S. 2(1)(b) and lend some support to the conclusion that cl. (i) in S. 2(1)(b) does not require that the agricultural produce should be sold and profit or gain received from such sale before it is included in the said clause. Therefore, we do not think that Mr. Mitra is justified in contending that the answer made by the High Court in reference to question 1 is wrong.The second question relates to the computation of agricultural income for the purposes of the Act. Rule 4 with the construction of which the second question is concerned reads thus :"4. For the purposes of the Act the market value of any agricultural produce shall, except in the case referred to in clause (a) of the proviso to sub-section (1) of section 8, be determined in the following manner, namely:-(1) if the agricultural produce was sold in the market the market value shall be deemed to be the price for which such produce was sold; . .(2) if the agricultural produce has not been sold in the market, the market value shall be deemed to be-(a) where such produce is ordinarily sold in the market in its raw state, or after the performance of any process ordinarily employed by a cultivator or receiver of rent-in-kind to render it fit to be taken to market, the value calculated according to the average price at which such produce has been so sold in the locality during the previous year in respect of which the assessment is made;(b) where such produce is not ordinarily sold in the market in the manner referred to in sub-clause (a), the aggregate of-(i) the expenses of cultivation;(ii) the land revenue or rent, paid for the area in which it was grown; and(iii) such amount as the Agricultural Income-tax Officer finds having, regard to all the circumstances in each case, to represent a reasonable rate of profit on the sale of the produce in question as agricultural produce."It is clear that R. 4(1) cannot apply to the appellants case for the agricultural produce in question has not been sold in the market but has been used by the appellant for its own business. The appellant contends that R. 4(2) cannot also be invoked against it, and so there is no rule under which the agricultural income in question can be computed. Incidentally the appellant suggested that if its construction of R 4(2) is right it indirectly supports its case as to the true scope and effect of S. 2(1)(b)(i). The Legislature knew that agricultural produce is not taxable unless it is sold, and so it has not made any rule for the computation of agricultural income alleged to have been received by the assessee from agricultural produce used by the assessee for its own purpose. On the other hand, the respondent contends that R. 4(2) covers the present case, and if that, is so, according to the respondent, that would incidentally support his construction of S. 2(1)(b)(i).15. The argument urged by the appellant assumes that the two rules are based on a kind of basic dichotomy. Rule 1 deals with agricultural produce sold in the market, and R. 2 with the agricultural produce which has been sold but not in the market. In other words, according to the appellant, both the rules assume that the agricultural produce has in fact been sold R. (1) deals with cases where it has been sold in the market and R. (2) with cases where it has been sold but not in the market. If this argument is right then of course cases where agricultural produce has not been sold would remain outside the purview of both the rules; but is this argument right? We have no hesitation in holding that it is not. In our opinion, R. (2) deals with cases where agricultural produce has been sold outside the market as well as cases where agricultural produce has not been sold at all. The effect of reading the two sub-rules together is that the cases of market sales are covered by R. (1) and all other cases are covered by R. (2), Rule (2) is a residuary rule which applies to all cases not falling under R. (1). Therefore, we must hold that the answer given by the High Court to question 2 is also right. It is obvious that the rules framed in exercise of the power conferred by . 57 of the Act cannot legitimately be pressed into service for the purpose of construing the relevant provisions of the Act; even so, incidentally it may be permissible to observe that the construction of R. 4(2) which we are inclined to adopt is consistent with the respondents case that S. 2(1) (b) (j) includes agricultural produce utilised by the appellant for its own business. | 0[ds]7. Section 2(1) (a) deals with the agricultural income consisting of rent or revenue derived from land which is used for agricultural purposes and is either assessed to land revenue in a State or subject to local rate assessed or collected by officers of the Government as such. We are not concerned with this part of the definition.This argument is based on the assumption that income as defined by S. 2(1) (b) (i) must always be in the nature of profit or gain, and that inevitably postulates a sale transaction made at a profit orthe argument based on the emphasis on the use of the words profits and gains" in Ss. 4 and 6 of the Income-tax Act cannot really assist the appellant in construing S. 2(1)(b)(i) of the Act with which we areis, however, clear that the employment of the process contemplated by the second clause must not alter the character of the produce. The produce must retain its original character and the only change that may have been brought about in the produce is to make it marketable. The said change in the condition of the produce is only intended to make the produce a saleable commodity in the market. Thus cl. (ii) includes within the categories of income derived from the employment of the process falling under that clause. As we have just observed the object of employing the requisite process is to make the produce marketable but in terms the clause does not refer to sale and does not require that the income should be obtained from sale as such though in a sense it contemplates the sale of theis significant that the sale to which cl. (iii) refers must be the sale of produce which has not been subject to any process other than that contemplated by cl. (ii). Thus it may be stated that reading cls. (ii) and (iii) together they contemplate the sale of the produce---cl. (ii) indirectly inasmuch as it refers to the process employed for making the produce marketable and cl. (iii) directly inasmuch as it refers to the price realised by sale of produce which has been subjected to the process contemplated by cl. (ii). Therefore, it is clear that income derived from sale of agricultural produce has been provided for by cls. (ii) and (iii) and prima facie that would show that cl. (i) which does not refer to sale even indirectly cannot be intended to cover cases of income derived from the sale of agriculturalterms the clause takes in income derived from agricultural land by agriculture; and as we have already pointed out giving the material words their plain grammatical meaning there is no doubt that agricultural produce constitutes income under thisour opinion this question must be answered in the negative. Not only is there no indication in the context which would justify the importing of the concept of sale in the relevant clause, but as we have just indicated the indication provided by cls. (ii) and (iii) is all to the contrary. What this clause seems clearly to have in view is agricultural produce itself which has been used by the assessee. In the present case it is common ground that the appellant has utilised for its business the agricultural produce in question and we feel no difficulty in agreeing with the High Court when it held that the agricultural produce utilised by the appellant for its business constitutes income under S. 2(1)(b) (i). If the agricultural produce used by the appellant was not intended to be included within the definition of income under S. 2(1) (b) we apprehend that the whole clause would have been very differently worded. Where income derived from sale was intended to be prescribed the Legislature has done so in terms by cl. (iii) of S. 2(1)(b). Where the marketable condition of the produce resulting from the employment of the specified processes and income derived from the adoption of such processes was intended to be included in the income the Legislature has done so by cl. (ii); and so those two cases having been specifically provided for by the two respective clauses there would be no justification for introducing the concept of sale in construing cl. (i) of S. 2(1)(b). The words in S. 2(1)(b) (i) are, in our opinion, wide, plain and unambiguous and they cannot be construed to exclude agricultural produce used by the appellant for its business. In this connection we may incidentally refer to the provisions of sub-cls. (i), (ii) and (iii) of S. 7(1) of the Act which provide for the computation of tax and allowances under the head "agricultural income from agriculture". These three sub-clauses in terms correspond to the three sub-clauses of S. 2(1)(b) and lend some support to the conclusion that cl. (i) in S. 2(1)(b) does not require that the agricultural produce should be sold and profit or gain received from such sale before it is included in the said clause. Therefore, we do not think that Mr. Mitra is justified in contending that the answer made by the High Court in reference to question 1 isis clear that R. 4(1) cannot apply to the appellants case for the agricultural produce in question has not been sold in the market but has been used by the appellant for its own business.The argument urged by the appellant assumes that the two rules are based on a kind of basic dichotomy. Rule 1 deals with agricultural produce sold in the market, and R. 2 with the agricultural produce which has been sold but not in the market. In other words, according to the appellant, both the rules assume that the agricultural produce has in fact been sold R. (1) deals with cases where it has been sold in the market and R. (2) with cases where it has been sold but not in thehave no hesitation in holding that it is not. In our opinion, R. (2) deals with cases where agricultural produce has been sold outside the market as well as cases where agricultural produce has not been sold at all. The effect of reading the two sub-rules together is that the cases of market sales are covered by R. (1) and all other cases are covered by R. (2), Rule (2) is a residuary rule which applies to all cases not falling under R. (1). Therefore, we must hold that the answer given by the High Court to question 2 is also right. It is obvious that the rules framed in exercise of the power conferred by . 57 of the Act cannot legitimately be pressed into service for the purpose of construing the relevant provisions of the Act; even so, incidentally it may be permissible to observe that the construction of R. 4(2) which we are inclined to adopt is consistent with the respondents case that S. 2(1) (b) (j) includes agricultural produce utilised by the appellant for its own business. | 0 | 4,642 | 1,370 | ### 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:
to be included within the definition of income under S. 2(1) (b) we apprehend that the whole clause would have been very differently worded. Where income derived from sale was intended to be prescribed the Legislature has done so in terms by cl. (iii) of S. 2(1)(b). Where the marketable condition of the produce resulting from the employment of the specified processes and income derived from the adoption of such processes was intended to be included in the income the Legislature has done so by cl. (ii); and so those two cases having been specifically provided for by the two respective clauses there would be no justification for introducing the concept of sale in construing cl. (i) of S. 2(1)(b). The words in S. 2(1)(b) (i) are, in our opinion, wide, plain and unambiguous and they cannot be construed to exclude agricultural produce used by the appellant for its business. In this connection we may incidentally refer to the provisions of sub-cls. (i), (ii) and (iii) of S. 7(1) of the Act which provide for the computation of tax and allowances under the head "agricultural income from agriculture". These three sub-clauses in terms correspond to the three sub-clauses of S. 2(1)(b) and lend some support to the conclusion that cl. (i) in S. 2(1)(b) does not require that the agricultural produce should be sold and profit or gain received from such sale before it is included in the said clause. Therefore, we do not think that Mr. Mitra is justified in contending that the answer made by the High Court in reference to question 1 is wrong.The second question relates to the computation of agricultural income for the purposes of the Act. Rule 4 with the construction of which the second question is concerned reads thus :"4. For the purposes of the Act the market value of any agricultural produce shall, except in the case referred to in clause (a) of the proviso to sub-section (1) of section 8, be determined in the following manner, namely:-(1) if the agricultural produce was sold in the market the market value shall be deemed to be the price for which such produce was sold; . .(2) if the agricultural produce has not been sold in the market, the market value shall be deemed to be-(a) where such produce is ordinarily sold in the market in its raw state, or after the performance of any process ordinarily employed by a cultivator or receiver of rent-in-kind to render it fit to be taken to market, the value calculated according to the average price at which such produce has been so sold in the locality during the previous year in respect of which the assessment is made;(b) where such produce is not ordinarily sold in the market in the manner referred to in sub-clause (a), the aggregate of-(i) the expenses of cultivation;(ii) the land revenue or rent, paid for the area in which it was grown; and(iii) such amount as the Agricultural Income-tax Officer finds having, regard to all the circumstances in each case, to represent a reasonable rate of profit on the sale of the produce in question as agricultural produce."It is clear that R. 4(1) cannot apply to the appellants case for the agricultural produce in question has not been sold in the market but has been used by the appellant for its own business. The appellant contends that R. 4(2) cannot also be invoked against it, and so there is no rule under which the agricultural income in question can be computed. Incidentally the appellant suggested that if its construction of R 4(2) is right it indirectly supports its case as to the true scope and effect of S. 2(1)(b)(i). The Legislature knew that agricultural produce is not taxable unless it is sold, and so it has not made any rule for the computation of agricultural income alleged to have been received by the assessee from agricultural produce used by the assessee for its own purpose. On the other hand, the respondent contends that R. 4(2) covers the present case, and if that, is so, according to the respondent, that would incidentally support his construction of S. 2(1)(b)(i).15. The argument urged by the appellant assumes that the two rules are based on a kind of basic dichotomy. Rule 1 deals with agricultural produce sold in the market, and R. 2 with the agricultural produce which has been sold but not in the market. In other words, according to the appellant, both the rules assume that the agricultural produce has in fact been sold R. (1) deals with cases where it has been sold in the market and R. (2) with cases where it has been sold but not in the market. If this argument is right then of course cases where agricultural produce has not been sold would remain outside the purview of both the rules; but is this argument right? We have no hesitation in holding that it is not. In our opinion, R. (2) deals with cases where agricultural produce has been sold outside the market as well as cases where agricultural produce has not been sold at all. The effect of reading the two sub-rules together is that the cases of market sales are covered by R. (1) and all other cases are covered by R. (2), Rule (2) is a residuary rule which applies to all cases not falling under R. (1). Therefore, we must hold that the answer given by the High Court to question 2 is also right. It is obvious that the rules framed in exercise of the power conferred by . 57 of the Act cannot legitimately be pressed into service for the purpose of construing the relevant provisions of the Act; even so, incidentally it may be permissible to observe that the construction of R. 4(2) which we are inclined to adopt is consistent with the respondents case that S. 2(1) (b) (j) includes agricultural produce utilised by the appellant for its own business.
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0
### Explanation:
its original character and the only change that may have been brought about in the produce is to make it marketable. The said change in the condition of the produce is only intended to make the produce a saleable commodity in the market. Thus cl. (ii) includes within the categories of income derived from the employment of the process falling under that clause. As we have just observed the object of employing the requisite process is to make the produce marketable but in terms the clause does not refer to sale and does not require that the income should be obtained from sale as such though in a sense it contemplates the sale of theis significant that the sale to which cl. (iii) refers must be the sale of produce which has not been subject to any process other than that contemplated by cl. (ii). Thus it may be stated that reading cls. (ii) and (iii) together they contemplate the sale of the produce---cl. (ii) indirectly inasmuch as it refers to the process employed for making the produce marketable and cl. (iii) directly inasmuch as it refers to the price realised by sale of produce which has been subjected to the process contemplated by cl. (ii). Therefore, it is clear that income derived from sale of agricultural produce has been provided for by cls. (ii) and (iii) and prima facie that would show that cl. (i) which does not refer to sale even indirectly cannot be intended to cover cases of income derived from the sale of agriculturalterms the clause takes in income derived from agricultural land by agriculture; and as we have already pointed out giving the material words their plain grammatical meaning there is no doubt that agricultural produce constitutes income under thisour opinion this question must be answered in the negative. Not only is there no indication in the context which would justify the importing of the concept of sale in the relevant clause, but as we have just indicated the indication provided by cls. (ii) and (iii) is all to the contrary. What this clause seems clearly to have in view is agricultural produce itself which has been used by the assessee. In the present case it is common ground that the appellant has utilised for its business the agricultural produce in question and we feel no difficulty in agreeing with the High Court when it held that the agricultural produce utilised by the appellant for its business constitutes income under S. 2(1)(b) (i). If the agricultural produce used by the appellant was not intended to be included within the definition of income under S. 2(1) (b) we apprehend that the whole clause would have been very differently worded. Where income derived from sale was intended to be prescribed the Legislature has done so in terms by cl. (iii) of S. 2(1)(b). Where the marketable condition of the produce resulting from the employment of the specified processes and income derived from the adoption of such processes was intended to be included in the income the Legislature has done so by cl. (ii); and so those two cases having been specifically provided for by the two respective clauses there would be no justification for introducing the concept of sale in construing cl. (i) of S. 2(1)(b). The words in S. 2(1)(b) (i) are, in our opinion, wide, plain and unambiguous and they cannot be construed to exclude agricultural produce used by the appellant for its business. In this connection we may incidentally refer to the provisions of sub-cls. (i), (ii) and (iii) of S. 7(1) of the Act which provide for the computation of tax and allowances under the head "agricultural income from agriculture". These three sub-clauses in terms correspond to the three sub-clauses of S. 2(1)(b) and lend some support to the conclusion that cl. (i) in S. 2(1)(b) does not require that the agricultural produce should be sold and profit or gain received from such sale before it is included in the said clause. Therefore, we do not think that Mr. Mitra is justified in contending that the answer made by the High Court in reference to question 1 isis clear that R. 4(1) cannot apply to the appellants case for the agricultural produce in question has not been sold in the market but has been used by the appellant for its own business.The argument urged by the appellant assumes that the two rules are based on a kind of basic dichotomy. Rule 1 deals with agricultural produce sold in the market, and R. 2 with the agricultural produce which has been sold but not in the market. In other words, according to the appellant, both the rules assume that the agricultural produce has in fact been sold R. (1) deals with cases where it has been sold in the market and R. (2) with cases where it has been sold but not in thehave no hesitation in holding that it is not. In our opinion, R. (2) deals with cases where agricultural produce has been sold outside the market as well as cases where agricultural produce has not been sold at all. The effect of reading the two sub-rules together is that the cases of market sales are covered by R. (1) and all other cases are covered by R. (2), Rule (2) is a residuary rule which applies to all cases not falling under R. (1). Therefore, we must hold that the answer given by the High Court to question 2 is also right. It is obvious that the rules framed in exercise of the power conferred by . 57 of the Act cannot legitimately be pressed into service for the purpose of construing the relevant provisions of the Act; even so, incidentally it may be permissible to observe that the construction of R. 4(2) which we are inclined to adopt is consistent with the respondents case that S. 2(1) (b) (j) includes agricultural produce utilised by the appellant for its own business.
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State of Uttar Pradesh Vs. Mahipal | get the property in any manner. In fact, the High Court went on to hold that the accused respondent would have got the property only if the entire line of the descendants is to be wiped out.So far as the recovery of the SIM card from one of the rooms of the house of the accused respondent is concerned, the High Court thought it proper to pay regard to the fact that the said SIM card did not belong to the accused respondent.Insofar as the recovery of dead-bodies of two children are concerned, the High Court relied on the evidence of PW-3 - Sher Singh to the effect that the recovery memo was not read out to him. The High Court further took the view that the prosecution case of ransom calls on 11th January, 2013 did not appear to be logical in a situation where the two children were already dead on 9th January, 2013. The High Court also took into account certain statements made by the witnesses with regard to Police torture of the accused respondent to arrive at the conclusion that the statement leading to the recovery was obtained under duress and, therefore, ought not to have been relied on. 8. We have considered the matter. We have taken note of the evidence of PWs-1, 3 and 5 (Panch witnesses) and also the evidence of the Investigating Officer. We have read and considered the statement of the accused respondent recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."). 9. Whether the accused respondent would have inherited the property following the death of the children is an issue that was not raised by the prosecution in the trial against the accused respondent. The specific case of the prosecution, in fact, was that because of the bequeathing of the property in favour of Sushila, the grandmother of the deceased children, the accused respondent had entertained a strong grudge against the family and the act of disappearance of the children and their death was to wreck vengeance on the family. Motive for the crime, therefore, appears to have been proved and established against the accused respondent on the testimony of PW-1 who has categorically stated about the said fact.10. So far as the recovery of the SIM card is concerned, the learned counsel for the accused respondent has vehemently urged that the prosecution has not proved the call details in respect of Mobile No.7895848163. That apart, the fact that the number of the mobile was written on the SIM card is something which cannot be accepted. 11. We have considered the said argument advanced by the learned counsel for the accused respondent. PW-1 is clear and categorical in asserting that several phone-calls were received from the aforesaid Mobile No.7895848163 demanding ransom and conveying instructions from time to time. It is on that basis that suspicion of the complainant(s) and family members with regard to the involvement of the accused respondent was raised which was duly intimated to the Police. The fact that the SIM card did not belong to the accused respondent, a fact relied upon by the High Court in coming to its impugned finding, in our considered view, is altogether irrelevant. What is relevant is that the SIM card was recovered from one of the rooms of the house of the accused respondent with regard to which he failed to offer any satisfactory explanation. Proof of calls from a Mobile phone can be established on the basis of oral evidence if such oral evidence is to be accepted by the Court. In the present case, we find no reason to disbelieve PW-1 with regard to the receipt of phone calls from the aforesaid Mobile No.7895848163.12. Insofar as the recovery of the dead bodies of the two children are concerned, we have perused the evidence of Pws-1, 3 and 5. All the witnesses in their examination-in-chief have categorically stated that the recovery memo was prepared on the spot and that they have signed it voluntarily. A different version appearing in the cross-examination of PW-1 and PW-3 cannot detract from what was deposed by the aforesaid witnesses in their examination-in-chief. If the dead bodies are recovered from three feet (3 ft.) under the earth from the compound of the house of the accused respondent, the accused respondent cannot afford to remain silent. No explanation is forthcoming in the statement of the accused recorded under Section 313 Cr.P.C.13. The fact that ransom calls were made after 9th January, 2013 on which date the two children murdered, as it now appears, will make no significant change to the situation. Making of ransom calls after the person abducted is put to death is a common feature in cases of the kind the Court is confronted with. The aforesaid fact cannot certainly go to the benefit of the accused respondent. The finding of the High Court with regard to torture of the accused respondent leading to his consequential statement resulting in the recovery of the dead bodies of the children cannot have our approval inasmuch as it is the prosecution case that the accused had been arrested on 22nd January, 2013 and the recoveries were made on the same day. That apart, at no point of time, including in his statement under Section 313 Cr.P.C., the accused respondent had even whispered about any Police torture leading to the making of the statement resulting in recovery of the dead bodies of the children.14. For the aforesaid reasons, we cannot concur with the views expressed by the High Court in the order under challenge. Rather, we are of the view that it is the trial Court which was correct in convicting the accused respondent, inter alia, under Section 302 IPC. We, accordingly, affirm the aforesaid conviction but alter the sentence of death to one of life imprisonment as the present, in our considered view, is not one of rarest of the rare cases for invocation of the death penalty. | 1[ds]9. Whether the accused respondent would have inherited the property following the death of the children is an issue that was not raised by the prosecution in the trial against the accused respondent. The specific case of the prosecution, in fact, was that because of the bequeathing of the property in favour of Sushila, the grandmother of the deceased children, the accused respondent had entertained a strong grudge against the family and the act of disappearance of the children and their death was to wreck vengeance on the family. Motive for the crime, therefore, appears to have been proved and established against the accused respondent on the testimony ofwho has categorically stated about the said fact.So far as the recovery of the SIM card is concerned, the learned counsel for the accused respondent has vehemently urged that the prosecution has not proved the call details in respect of Mobile No.7895848163. That apart, the fact that the number of the mobile was written on the SIM card is something which cannot be accepted.We have considered the said argument advanced by the learned counsel for the accused respondent.is clear and categorical in asserting that severalwere received from the aforesaid Mobile No.7895848163 demanding ransom and conveying instructions from time to time. It is on that basis that suspicion of the complainant(s) and family members with regard to the involvement of the accused respondent was raised which was duly intimated to the Police. The fact that the SIM card did not belong to the accused respondent, a fact relied upon by the High Court in coming to its impugned finding, in our considered view, is altogether irrelevant. What is relevant is that the SIM card was recovered from one of the rooms of the house of the accused respondent with regard to which he failed to offer any satisfactory explanation. Proof of calls from a Mobile phone can be established on the basis of oral evidence if such oral evidence is to be accepted by the Court. In the present case, we find no reason to disbelievewith regard to the receipt of phone calls from the aforesaid Mobile No.7895848163.12. Insofar as the recovery of the dead bodies of the two children are concerned, we have perused the evidence of3 and 5. All the witnesses in theirhave categorically stated that the recovery memo was prepared on the spot and that they have signed it voluntarily. A different version appearing in thecannot detract from what was deposed by the aforesaid witnesses in theirIf the dead bodies are recovered from three feet (3 ft.) under the earth from the compound of the house of the accused respondent, the accused respondent cannot afford to remain silent. No explanation is forthcoming in the statement of the accused recorded under Section 313 Cr.P.C.13. The fact that ransom calls were made after 9th January, 2013 on which date the two children murdered, as it now appears, will make no significant change to the situation. Making of ransom calls after the person abducted is put to death is a common feature in cases of the kind the Court is confronted with. The aforesaid fact cannot certainly go to the benefit of the accused respondent. The finding of the High Court with regard to torture of the accused respondent leading to his consequential statement resulting in the recovery of the dead bodies of the children cannot have our approval inasmuch as it is the prosecution case that the accused had been arrested on 22nd January, 2013 and the recoveries were made on the same day. That apart, at no point of time, including in his statement under Section 313 Cr.P.C., the accused respondent had even whispered about any Police torture leading to the making of the statement resulting in recovery of the dead bodies of the children.14. For the aforesaid reasons, we cannot concur with the views expressed by the High Court in the order under challenge. Rather, we are of the view that it is the trial Court which was correct in convicting the accused respondent, inter alia, under Section 302accordingly, affirm the aforesaid conviction but alter the sentence of death to one of life imprisonment as the present, in our considered view, is not one of rarest of the rare cases for invocation of the death penalty. | 1 | 1,566 | 779 | ### 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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get the property in any manner. In fact, the High Court went on to hold that the accused respondent would have got the property only if the entire line of the descendants is to be wiped out.So far as the recovery of the SIM card from one of the rooms of the house of the accused respondent is concerned, the High Court thought it proper to pay regard to the fact that the said SIM card did not belong to the accused respondent.Insofar as the recovery of dead-bodies of two children are concerned, the High Court relied on the evidence of PW-3 - Sher Singh to the effect that the recovery memo was not read out to him. The High Court further took the view that the prosecution case of ransom calls on 11th January, 2013 did not appear to be logical in a situation where the two children were already dead on 9th January, 2013. The High Court also took into account certain statements made by the witnesses with regard to Police torture of the accused respondent to arrive at the conclusion that the statement leading to the recovery was obtained under duress and, therefore, ought not to have been relied on. 8. We have considered the matter. We have taken note of the evidence of PWs-1, 3 and 5 (Panch witnesses) and also the evidence of the Investigating Officer. We have read and considered the statement of the accused respondent recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."). 9. Whether the accused respondent would have inherited the property following the death of the children is an issue that was not raised by the prosecution in the trial against the accused respondent. The specific case of the prosecution, in fact, was that because of the bequeathing of the property in favour of Sushila, the grandmother of the deceased children, the accused respondent had entertained a strong grudge against the family and the act of disappearance of the children and their death was to wreck vengeance on the family. Motive for the crime, therefore, appears to have been proved and established against the accused respondent on the testimony of PW-1 who has categorically stated about the said fact.10. So far as the recovery of the SIM card is concerned, the learned counsel for the accused respondent has vehemently urged that the prosecution has not proved the call details in respect of Mobile No.7895848163. That apart, the fact that the number of the mobile was written on the SIM card is something which cannot be accepted. 11. We have considered the said argument advanced by the learned counsel for the accused respondent. PW-1 is clear and categorical in asserting that several phone-calls were received from the aforesaid Mobile No.7895848163 demanding ransom and conveying instructions from time to time. It is on that basis that suspicion of the complainant(s) and family members with regard to the involvement of the accused respondent was raised which was duly intimated to the Police. The fact that the SIM card did not belong to the accused respondent, a fact relied upon by the High Court in coming to its impugned finding, in our considered view, is altogether irrelevant. What is relevant is that the SIM card was recovered from one of the rooms of the house of the accused respondent with regard to which he failed to offer any satisfactory explanation. Proof of calls from a Mobile phone can be established on the basis of oral evidence if such oral evidence is to be accepted by the Court. In the present case, we find no reason to disbelieve PW-1 with regard to the receipt of phone calls from the aforesaid Mobile No.7895848163.12. Insofar as the recovery of the dead bodies of the two children are concerned, we have perused the evidence of Pws-1, 3 and 5. All the witnesses in their examination-in-chief have categorically stated that the recovery memo was prepared on the spot and that they have signed it voluntarily. A different version appearing in the cross-examination of PW-1 and PW-3 cannot detract from what was deposed by the aforesaid witnesses in their examination-in-chief. If the dead bodies are recovered from three feet (3 ft.) under the earth from the compound of the house of the accused respondent, the accused respondent cannot afford to remain silent. No explanation is forthcoming in the statement of the accused recorded under Section 313 Cr.P.C.13. The fact that ransom calls were made after 9th January, 2013 on which date the two children murdered, as it now appears, will make no significant change to the situation. Making of ransom calls after the person abducted is put to death is a common feature in cases of the kind the Court is confronted with. The aforesaid fact cannot certainly go to the benefit of the accused respondent. The finding of the High Court with regard to torture of the accused respondent leading to his consequential statement resulting in the recovery of the dead bodies of the children cannot have our approval inasmuch as it is the prosecution case that the accused had been arrested on 22nd January, 2013 and the recoveries were made on the same day. That apart, at no point of time, including in his statement under Section 313 Cr.P.C., the accused respondent had even whispered about any Police torture leading to the making of the statement resulting in recovery of the dead bodies of the children.14. For the aforesaid reasons, we cannot concur with the views expressed by the High Court in the order under challenge. Rather, we are of the view that it is the trial Court which was correct in convicting the accused respondent, inter alia, under Section 302 IPC. We, accordingly, affirm the aforesaid conviction but alter the sentence of death to one of life imprisonment as the present, in our considered view, is not one of rarest of the rare cases for invocation of the death penalty.
### Response:
1
### Explanation:
9. Whether the accused respondent would have inherited the property following the death of the children is an issue that was not raised by the prosecution in the trial against the accused respondent. The specific case of the prosecution, in fact, was that because of the bequeathing of the property in favour of Sushila, the grandmother of the deceased children, the accused respondent had entertained a strong grudge against the family and the act of disappearance of the children and their death was to wreck vengeance on the family. Motive for the crime, therefore, appears to have been proved and established against the accused respondent on the testimony ofwho has categorically stated about the said fact.So far as the recovery of the SIM card is concerned, the learned counsel for the accused respondent has vehemently urged that the prosecution has not proved the call details in respect of Mobile No.7895848163. That apart, the fact that the number of the mobile was written on the SIM card is something which cannot be accepted.We have considered the said argument advanced by the learned counsel for the accused respondent.is clear and categorical in asserting that severalwere received from the aforesaid Mobile No.7895848163 demanding ransom and conveying instructions from time to time. It is on that basis that suspicion of the complainant(s) and family members with regard to the involvement of the accused respondent was raised which was duly intimated to the Police. The fact that the SIM card did not belong to the accused respondent, a fact relied upon by the High Court in coming to its impugned finding, in our considered view, is altogether irrelevant. What is relevant is that the SIM card was recovered from one of the rooms of the house of the accused respondent with regard to which he failed to offer any satisfactory explanation. Proof of calls from a Mobile phone can be established on the basis of oral evidence if such oral evidence is to be accepted by the Court. In the present case, we find no reason to disbelievewith regard to the receipt of phone calls from the aforesaid Mobile No.7895848163.12. Insofar as the recovery of the dead bodies of the two children are concerned, we have perused the evidence of3 and 5. All the witnesses in theirhave categorically stated that the recovery memo was prepared on the spot and that they have signed it voluntarily. A different version appearing in thecannot detract from what was deposed by the aforesaid witnesses in theirIf the dead bodies are recovered from three feet (3 ft.) under the earth from the compound of the house of the accused respondent, the accused respondent cannot afford to remain silent. No explanation is forthcoming in the statement of the accused recorded under Section 313 Cr.P.C.13. The fact that ransom calls were made after 9th January, 2013 on which date the two children murdered, as it now appears, will make no significant change to the situation. Making of ransom calls after the person abducted is put to death is a common feature in cases of the kind the Court is confronted with. The aforesaid fact cannot certainly go to the benefit of the accused respondent. The finding of the High Court with regard to torture of the accused respondent leading to his consequential statement resulting in the recovery of the dead bodies of the children cannot have our approval inasmuch as it is the prosecution case that the accused had been arrested on 22nd January, 2013 and the recoveries were made on the same day. That apart, at no point of time, including in his statement under Section 313 Cr.P.C., the accused respondent had even whispered about any Police torture leading to the making of the statement resulting in recovery of the dead bodies of the children.14. For the aforesaid reasons, we cannot concur with the views expressed by the High Court in the order under challenge. Rather, we are of the view that it is the trial Court which was correct in convicting the accused respondent, inter alia, under Section 302accordingly, affirm the aforesaid conviction but alter the sentence of death to one of life imprisonment as the present, in our considered view, is not one of rarest of the rare cases for invocation of the death penalty.
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Sudhir Kumar Rana Vs. Surinder Singh | S.B. Sinha, J. 1. Leave granted. 2. Appellant was driving a two-wheeler bearing registration No. DL-45 AQ 0731 on 30.10.2003. He was aged about 17 = years. He met with an accident, as allegedly respondent No.1 was driving a mini-truck rashly and negligently. He suffered the following injuries in the said accident: "1. Crush injury over right root.2. Fracture fifth M.T. bone and joint.3. Fracture P.P. little toe. (Total 3 fractures)4. Abrasions over left side trunk, right-foot, right-leg, right-hand and left-knee5. Profusely Bleeding.6. Abrasions and blunt injuries all over body." 3. Appellant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short "the Act"). The Tribunal opined that as the appellant did not possess a driving licence, he must be held to have contributed to the accident. Although a sum of Rs. 30,000/- was awarded by way of compensation, in view of the finding that he was guilty of contributory negligence on his part, found to be entitled to a sum of Rs. 12,000/- only. The High Court by reason of the impugned judgment has dismissed the appeal preferred by him under Section 173 of the Act. 4. The question which arises for consideration is as to whether the appellant can be said to have guilty of contributory negligence. Ordinarily, the doctrine of contributory negligence is not applicable in case of children with the same force as in the case of adults. 5. We do not intend to lay down a law that a child can never be guilty of contributory negligence but ordinarily the same is a question of fact. [See Muthuswamy and another v. S.A.R. Annamalai and others [1990 ACJ 974 ]. 6. A contributory negligence may be defined as negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so. The question of contributory negligence would arise only when both parties are found to be negligent. 7. The question is, negligence for what? If the complainant must be guilty of an act or omission which materially contributed to the accident and resulted in injury and damage, the concept of contributory negligence would apply. [See New India Assurance Company Ltd. v. Avinash 1988 ACJ 322 (Raj.)]. In T.O. Anthony v. Kavarnan & Ors. [(2008) 3 SCC 748, it was held: "6. Composite negligence refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of composite negligence will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error." 8. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini-truck which was being driven rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.9. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place. | 1[ds]8. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of thewhich was being driven rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving therashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.9. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place. | 1 | 1,013 | 161 | ### 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:
S.B. Sinha, J. 1. Leave granted. 2. Appellant was driving a two-wheeler bearing registration No. DL-45 AQ 0731 on 30.10.2003. He was aged about 17 = years. He met with an accident, as allegedly respondent No.1 was driving a mini-truck rashly and negligently. He suffered the following injuries in the said accident: "1. Crush injury over right root.2. Fracture fifth M.T. bone and joint.3. Fracture P.P. little toe. (Total 3 fractures)4. Abrasions over left side trunk, right-foot, right-leg, right-hand and left-knee5. Profusely Bleeding.6. Abrasions and blunt injuries all over body." 3. Appellant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short "the Act"). The Tribunal opined that as the appellant did not possess a driving licence, he must be held to have contributed to the accident. Although a sum of Rs. 30,000/- was awarded by way of compensation, in view of the finding that he was guilty of contributory negligence on his part, found to be entitled to a sum of Rs. 12,000/- only. The High Court by reason of the impugned judgment has dismissed the appeal preferred by him under Section 173 of the Act. 4. The question which arises for consideration is as to whether the appellant can be said to have guilty of contributory negligence. Ordinarily, the doctrine of contributory negligence is not applicable in case of children with the same force as in the case of adults. 5. We do not intend to lay down a law that a child can never be guilty of contributory negligence but ordinarily the same is a question of fact. [See Muthuswamy and another v. S.A.R. Annamalai and others [1990 ACJ 974 ]. 6. A contributory negligence may be defined as negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so. The question of contributory negligence would arise only when both parties are found to be negligent. 7. The question is, negligence for what? If the complainant must be guilty of an act or omission which materially contributed to the accident and resulted in injury and damage, the concept of contributory negligence would apply. [See New India Assurance Company Ltd. v. Avinash 1988 ACJ 322 (Raj.)]. In T.O. Anthony v. Kavarnan & Ors. [(2008) 3 SCC 748, it was held: "6. Composite negligence refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of composite negligence will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error." 8. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini-truck which was being driven rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.9. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place.
### Response:
1
### Explanation:
8. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of thewhich was being driven rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving therashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.9. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place.
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Jagdev Singh & Another Vs. State of Punjab | Singh were tried in the court of the Additional Sessions Judge, Sangrur for an offence under S. 307 read with S. 34, I. P. C., for a murderous assault on Nand Singh (P. W. 6), in furtherance of the common intention of all of them, in village Lehal Khurd. Jagdev Singh and Mohinder Singh accused were convicted under Section 307, I. P. C. and sentenced to rigorous imprisonment for 7 years each, whereas Jagdev and Karnail Singh were convicted under Section 307 read with Section 34, I. P. C. and sentenced to rigorous imprisonment for 4 years each.3. The High Court of Punjab and Haryana on appeal converted Mohinder Singhs conviction into one under Section 326, I. P. C. and reduced his sentence of imprisonment to a period of two years rigorous imprisonment and also imposed a fine of Rs. 300/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment for three months. Jagrup Singhs conviction was also converted into one under Sections 326/34, I. P. C. and his sentence of imprisonment was also reduced to rigorous imprisonment for one year along with a fine of Rs. 300/-. In default of payment of fine, he was also ordered to serve further rigorous imprisonment for three months. The sentence imposed on Karnail Singh was reduced to that already undergone. Jagdev Singh, who gave his age as 18 years, but whom the learned Additional Sessions Judge considered from appearance to be 21/22 years old, had, in the opinion of the High Court, been, perhaps, persuaded by his elder brother Jagrup Singh to participate in the crime. His conviction was also in the circumstances converted into one under Section 326, I. P. C. and the sentence reduced to rigorous imprisonment for six months.4. Now, both Sections 4 and 6 of the Act clearly provide that the benefit of these sections is not available to persons found guilty of an offence punishable with imprisonment for life. This Act is intended to carry out the object of keeping away from the unhealthy atmosphere of jail life where normally one has to mix with hardened criminals, those found guilty of the commission of comparatively less serious offenses, by providing for dealing with them more leniently, with a view to their reformation under Sections 3, 4 or 6 of the Act as the case may be. An offence punishable under Section 326, I. P. C. or under Sections 326/34, I. P. C. is indisputably punishable with imprisonment for life. The benefit of the Act on the plain language of Ss. 4 and 6 is thus not available to the present appellants.5. Mr. Mahajan has, however, contended that the nature of the injuries proved to have been inflicted by the two appellants does not attract Section 326, I. P. C. This, in our opinion, is not open to the learned counsel to contend because special leave was granted by this Court limited only to the question whether the Act could be applied to this case. The merits of the appellants conviction are not, therefore, open to argument. The counsel has, however, contended that the whole case should be considered to be open for consideration by this Court, the restricted special leave notwithstanding, because the discretionary power of this Court under Art. 135 of the Constitution is intended to be exercised to set right grave injustice and if a case for such interference is made out even at this stage, the limitation imposed while granting special leave should not be held as a bar to the power of this Court to set right such grave injustice. This submission, however attractive prima facie as an appeal to this Court to set right grave injustice, is misconceived and difficult to accept. While granting special leave this Court considered the whole case and came to the conclusion that in the interest of justice only the applicability of the Act required examination. On no sound principle can this Court now ignore the limited scope of the special leave as granted. The scope of the appeal must be confined within the limitation specified in the order granting special leave.6. Mr. Mahajan, in order to get over this hurdle, prayed that he may be permitted to apply for review of the order dated April 3, 1973 so as to have the limitation placed on the scope of this appeal removed. According to him the evidence on the record does not make out a case punishable under Section 326 or Ss. 326/34, I. P. C. The evidence in this case, according to the learned counsel, has been misread. Assuming this submission is correct, in our view the order dated April 3, 1973 must be considered to be final and not open to reconsideration on a point which was open at the time of the argument on the special leave application. There is no new discovery of any fact which would justify re-examination of the order passed on April 3, 1973. The appellants conviction as held by the High Court on an appraisal of the evidence must be considered to be conclusive and binding on this Court in the present appeal. Once that conclusion is held final and not open to challenge, no other question arises and the appeal must fail.7. On the view that we have taken, it is unnecessary to decide whether, on the facts and circumstances of this case, the appellant should be permitted to raise the question of the benefit of the Act for the first time in this Court. No doubt, in special circumstances where the relevant material relating to the circumstances in which an offence is committed is on the record, this Court may justifiably grant such benefit to an appellant while finding him guilty but in the absence of such material, this Court may well disallow such a prayer to be made for the first time on appeal by special leave. More so when the question of the appellants guilt is not open for consideration. | 0[ds]4. Now, both Sections 4 and 6 of the Act clearly provide that the benefit of these sections is not available to persons found guilty of an offence punishable with imprisonment for life. This Act is intended to carry out the object of keeping away from the unhealthy atmosphere of jail life where normally one has to mix with hardened criminals, those found guilty of the commission of comparatively less serious offenses, by providing for dealing with them more leniently, with a view to their reformation under Sections 3, 4 or 6 of the Act as the case may be. An offence punishable under Section 326, I. P. C. or under Sections 326/34, I. P. C. is indisputably punishable with imprisonment for life. The benefit of the Act on the plain language of Ss. 4 and 6 is thus not available to the presentin our opinion, is not open to the learned counsel to contend because special leave was granted by this Court limited only to the question whether the Act could be applied to this case. The merits of the appellants conviction are not, therefore, open to argument. The counsel has, however, contended that the whole case should be considered to be open for consideration by this Court, the restricted special leave notwithstanding, because the discretionary power of this Court under Art. 135 of the Constitution is intended to be exercised to set right grave injustice and if a case for such interference is made out even at this stage, the limitation imposed while granting special leave should not be held as a bar to the power of this Court to set right such grave injustice. This submission, however attractive prima facie as an appeal to this Court to set right grave injustice, is misconceived and difficult to accept. While granting special leave this Court considered the whole case and came to the conclusion that in the interest of justice only the applicability of the Act required examination. On no sound principle can this Court now ignore the limited scope of the special leave as granted. The scope of the appeal must be confined within the limitation specified in the order granting specialthis submission is correct, in our view the order dated April 3, 1973 must be considered to be final and not open to reconsideration on a point which was open at the time of the argument on the special leave application. There is no new discovery of any fact which would justifyof the order passed on April 3, 1973. The appellants conviction as held by the High Court on an appraisal of the evidence must be considered to be conclusive and binding on this Court in the present appeal. Once that conclusion is held final and not open to challenge, no other question arises and the appeal must fail.7. On the view that we have taken, it is unnecessary to decide whether, on the facts and circumstances of this case, the appellant should be permitted to raise the question of the benefit of the Act for the first time in this Court. No doubt, in special circumstances where the relevant material relating to the circumstances in which an offence is committed is on the record, this Court may justifiably grant such benefit to an appellant while finding him guilty but in the absence of such material, this Court may well disallow such a prayer to be made for the first time on appeal by special leave. More so when the question of the appellants guilt is not open for consideration. | 0 | 1,189 | 643 | ### 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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Singh were tried in the court of the Additional Sessions Judge, Sangrur for an offence under S. 307 read with S. 34, I. P. C., for a murderous assault on Nand Singh (P. W. 6), in furtherance of the common intention of all of them, in village Lehal Khurd. Jagdev Singh and Mohinder Singh accused were convicted under Section 307, I. P. C. and sentenced to rigorous imprisonment for 7 years each, whereas Jagdev and Karnail Singh were convicted under Section 307 read with Section 34, I. P. C. and sentenced to rigorous imprisonment for 4 years each.3. The High Court of Punjab and Haryana on appeal converted Mohinder Singhs conviction into one under Section 326, I. P. C. and reduced his sentence of imprisonment to a period of two years rigorous imprisonment and also imposed a fine of Rs. 300/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment for three months. Jagrup Singhs conviction was also converted into one under Sections 326/34, I. P. C. and his sentence of imprisonment was also reduced to rigorous imprisonment for one year along with a fine of Rs. 300/-. In default of payment of fine, he was also ordered to serve further rigorous imprisonment for three months. The sentence imposed on Karnail Singh was reduced to that already undergone. Jagdev Singh, who gave his age as 18 years, but whom the learned Additional Sessions Judge considered from appearance to be 21/22 years old, had, in the opinion of the High Court, been, perhaps, persuaded by his elder brother Jagrup Singh to participate in the crime. His conviction was also in the circumstances converted into one under Section 326, I. P. C. and the sentence reduced to rigorous imprisonment for six months.4. Now, both Sections 4 and 6 of the Act clearly provide that the benefit of these sections is not available to persons found guilty of an offence punishable with imprisonment for life. This Act is intended to carry out the object of keeping away from the unhealthy atmosphere of jail life where normally one has to mix with hardened criminals, those found guilty of the commission of comparatively less serious offenses, by providing for dealing with them more leniently, with a view to their reformation under Sections 3, 4 or 6 of the Act as the case may be. An offence punishable under Section 326, I. P. C. or under Sections 326/34, I. P. C. is indisputably punishable with imprisonment for life. The benefit of the Act on the plain language of Ss. 4 and 6 is thus not available to the present appellants.5. Mr. Mahajan has, however, contended that the nature of the injuries proved to have been inflicted by the two appellants does not attract Section 326, I. P. C. This, in our opinion, is not open to the learned counsel to contend because special leave was granted by this Court limited only to the question whether the Act could be applied to this case. The merits of the appellants conviction are not, therefore, open to argument. The counsel has, however, contended that the whole case should be considered to be open for consideration by this Court, the restricted special leave notwithstanding, because the discretionary power of this Court under Art. 135 of the Constitution is intended to be exercised to set right grave injustice and if a case for such interference is made out even at this stage, the limitation imposed while granting special leave should not be held as a bar to the power of this Court to set right such grave injustice. This submission, however attractive prima facie as an appeal to this Court to set right grave injustice, is misconceived and difficult to accept. While granting special leave this Court considered the whole case and came to the conclusion that in the interest of justice only the applicability of the Act required examination. On no sound principle can this Court now ignore the limited scope of the special leave as granted. The scope of the appeal must be confined within the limitation specified in the order granting special leave.6. Mr. Mahajan, in order to get over this hurdle, prayed that he may be permitted to apply for review of the order dated April 3, 1973 so as to have the limitation placed on the scope of this appeal removed. According to him the evidence on the record does not make out a case punishable under Section 326 or Ss. 326/34, I. P. C. The evidence in this case, according to the learned counsel, has been misread. Assuming this submission is correct, in our view the order dated April 3, 1973 must be considered to be final and not open to reconsideration on a point which was open at the time of the argument on the special leave application. There is no new discovery of any fact which would justify re-examination of the order passed on April 3, 1973. The appellants conviction as held by the High Court on an appraisal of the evidence must be considered to be conclusive and binding on this Court in the present appeal. Once that conclusion is held final and not open to challenge, no other question arises and the appeal must fail.7. On the view that we have taken, it is unnecessary to decide whether, on the facts and circumstances of this case, the appellant should be permitted to raise the question of the benefit of the Act for the first time in this Court. No doubt, in special circumstances where the relevant material relating to the circumstances in which an offence is committed is on the record, this Court may justifiably grant such benefit to an appellant while finding him guilty but in the absence of such material, this Court may well disallow such a prayer to be made for the first time on appeal by special leave. More so when the question of the appellants guilt is not open for consideration.
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4. Now, both Sections 4 and 6 of the Act clearly provide that the benefit of these sections is not available to persons found guilty of an offence punishable with imprisonment for life. This Act is intended to carry out the object of keeping away from the unhealthy atmosphere of jail life where normally one has to mix with hardened criminals, those found guilty of the commission of comparatively less serious offenses, by providing for dealing with them more leniently, with a view to their reformation under Sections 3, 4 or 6 of the Act as the case may be. An offence punishable under Section 326, I. P. C. or under Sections 326/34, I. P. C. is indisputably punishable with imprisonment for life. The benefit of the Act on the plain language of Ss. 4 and 6 is thus not available to the presentin our opinion, is not open to the learned counsel to contend because special leave was granted by this Court limited only to the question whether the Act could be applied to this case. The merits of the appellants conviction are not, therefore, open to argument. The counsel has, however, contended that the whole case should be considered to be open for consideration by this Court, the restricted special leave notwithstanding, because the discretionary power of this Court under Art. 135 of the Constitution is intended to be exercised to set right grave injustice and if a case for such interference is made out even at this stage, the limitation imposed while granting special leave should not be held as a bar to the power of this Court to set right such grave injustice. This submission, however attractive prima facie as an appeal to this Court to set right grave injustice, is misconceived and difficult to accept. While granting special leave this Court considered the whole case and came to the conclusion that in the interest of justice only the applicability of the Act required examination. On no sound principle can this Court now ignore the limited scope of the special leave as granted. The scope of the appeal must be confined within the limitation specified in the order granting specialthis submission is correct, in our view the order dated April 3, 1973 must be considered to be final and not open to reconsideration on a point which was open at the time of the argument on the special leave application. There is no new discovery of any fact which would justifyof the order passed on April 3, 1973. The appellants conviction as held by the High Court on an appraisal of the evidence must be considered to be conclusive and binding on this Court in the present appeal. Once that conclusion is held final and not open to challenge, no other question arises and the appeal must fail.7. On the view that we have taken, it is unnecessary to decide whether, on the facts and circumstances of this case, the appellant should be permitted to raise the question of the benefit of the Act for the first time in this Court. No doubt, in special circumstances where the relevant material relating to the circumstances in which an offence is committed is on the record, this Court may justifiably grant such benefit to an appellant while finding him guilty but in the absence of such material, this Court may well disallow such a prayer to be made for the first time on appeal by special leave. More so when the question of the appellants guilt is not open for consideration.
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Sahebzada Mohammad Kamgar Shah Vs. Jagdish Chandra Deo Dhabal Deoand Others | the letter. In the very first sentence of the letter the Receiver is saying that sum of Rs. 4,993-6-1 as shown in the enclosure to the document was according to him due to the Dhalbhum Raj for the year 1930 on account of royalty; to this he was adding a statement in the second sentence that as soon as this statement of dues was accepted as correct a cheque in payment thereof would be sent. To say that however was not to say that earlier statement of what is due is subject to the acceptance of the accounts. The idea in the second sentence clearly was that in case the statement of what was due was not accepted as correct the matter will have to be decided by further discussion before payment will be made. This second sentence cannot by any stretch of imagination be read as a condition to the statement made in the first sentence. Similarly the first sentence in the second paragraph of the letter as regards the sum of Rs. 31,944-8-3 being royalty up to the end of December 1929 is, as we read the letter, made independent of what was stated in the following sentence and was not subject thereto. The argument that these acknowledgments were conditional acknowledgments has therefore been rightly rejected by the High Court.24. The second contention urged by the learned counsel is that in any case acknowledgment by the Receiver of an estate is not an acknowledgment by an agent of the owners of the estate "duly authorised in this behalf" within the meaning of Explanation II of S. 19 of the Limitation Act, and so is not an acknowledgment within the meaning of S. 19(1) of the Limitation Act.25.According to the learned counsel "duly authorised in this behalf" in Explanation II of S. 19 means "duly authorised by the debtor" and does not include duly authorised by law or by an order of the Court.For this proposition we can find no support either in authority or principle. Explanation II to S. 19 of the Limitation Act in saying "for the purposes of this section signed means signed either personally or by an agent duly authorised in this behalf" has not limited in any way the manner in which the authority can be given.The view taken in this matter by a Full Bench of the Bombay High Court in Annapagonda v. Sangadiappa, ILR 26 Bom 221, that "duly authorised" would include duly authorised either by the action of the party indebted or by force of law or order of the Court has been followed in other High Courts also(Vide Rashbehary v. Anand Ram, ILR 43 Cal 211 : (AIR 1916 Cal 107); Ramcharan Das v. Gaya Prasad, ILR 30 All 422 (FB); Lakshumanan v. Sadayappa, AIR 1919 Mad 816 and Thankamma v. Kunhamma, AIR 1919 Mad 370), and in our opinion represents the correct state of law.26. Mr. Jha has next argued that, in any case, law does not authorise the Receiver of an Estate to make acknowledgments of debt due from the estate. For this proposition he has relied on a decision of the Bombay High Court in Currimbhai v. Ahmedali, ILR 58 Bom 505: (AIR 1933 Bom 91). In that case it was held that an acknowledgment by an official assignee will not amount to an acknowledgment by an agent of the debtor. Thought this case does not deal strictly with the case of a Receiver, Mr. Jha has relied on the reasoning therein as supporting his contention. Our attention has been drawn by Mr. Sanyal, on behalf of the respondent to the fact that a contrary view has been taken in 35 Mad LJ 571: (AIR 1919 Mad 816). Mr. Sanyal has argued that in respect of a debt due from the estate the receiver of the estate fully represents the owners of the estate and that once it is held, as it must be, that the receiver had authority to pay the debt. Mr. Sanyal argues, it must necessarily be held that acknowledgment of a debt as incidental to the Receivers duties in respect of the payment of the debts, is also within his authority. So, he argues that in every case an acknowledgment by a Receiver is an acknowledgment by a duly authorised agent of the debtor.27. The above is a brief indication of the arguments on either side on Mr. Jhas contention that the Receiver has no authority to acknowledge the debts on behalf of the Estate. It is unnecessary for us however to decide for the purpose of the present appeal the question whether a Receiver is an agent of the owners of the estate of which he is the Receiver for the purposes of an acknowledgment of a debt under S. 19 of the Limitation Act.28. In the present case the suit is based on the second lease of 1919 which was executed in favour of the then Receiver. The acknowledgments by which limitation is claimed to have been saved is by a previous Receiver of the Estate through whom the appellant who is the present Receiver has derive his liability to pay the debts. Section 19 is therefore in terms applicable as the acknowledgments have been signed personally by those previous Receivers and no recourse is needed by the plaintiff to the second part of Explanation II.This position was indeed fairly conceded by Mr. Jha who agreed that in view of this it was not necessary for us to decide whether the Receiver of an Estate is by that fact itself an agent of the owners of the estate duly authorised to make acknowledgments under S. 19 of the Limitation Act.29. There can be no doubt that the acknowledgments on which the plaintiff relies are acknowledgments within the meaning of S. 19 of the Limitation Act and save limitation in respect of the period prior to August 12, 1953. The Courts below were therefore right in rejecting the defendants plea of limitation. | 0[ds]12. In his attempt to establish that by this later lease the lessor granted a lease even of those minerals which had been excluded specifically by clause 16 of the earlier lease, Mr. Jha has arrayed in his aid several well established principles of construction. The first of these is that the intention of the parties to a document of grant must be ascertained first and foremost from the words used in the disposition clause, understanding the words used in their strict, natural grammatical sense and that once the intention can be clearly understood from the words in the disposition clause this interpreted it is no business of the courts to examine what the parties may have said in other portions of the document. Next it is urged that it if does appear that the later clauses of the document purport to restrict or cut down in any way the effect of the earlier clause disposing of property the earlier clause must prevail. Thirdly it is said that if there be any ambiguity in the disposition clause taken by itself, the benefit of that ambiguity must be given to the grantee, the rule being that all documents of grants must be interpreted strictly as against the grantor. Lastly it was urged that where the operative portion of the document can be interpreted without the aid of the preamble, the preamble ought not and must not be looked into.13. The correctness of these principles is too well established by authorities to justify any detailed discussion. The task being to ascertain the intention of the parties, the cases have laid down that that intention has to be gathered by the words used by the parties themselves. In doing so the parties must be presumed to have used the words in their strict grammatical sense. If and when the parties have first expressed themselves in one way and then go on saying something, which is irreconcilable with what has gone before, the courts have evolved the principle on the theory that what once had been granted cannot next be taken away, that the clear disposition by an earlier clause will not be allowed to be cut down by a later clause. Where there is ambiguity it is the duty of the court to look at all the parts of the document to ascertain what was really intended by the parties. But even here the rule has to be borne in mind that the document being the grantors document it has to be interpreted strictly against him and in favour of theis in our opinion unthinkable that such a clause as this fourth clause would be included in respect of sub-lessees unless it was also the intention of the parties that the lessee himself would be bound by the provisions of cl. 16 of the principal lease. The view that this must have been the intention is strengthened by the concluding words of this lease which provide in substance that notwithstanding anything in the later lease the principal lease would be valid and subsisting. Here also there would be no point in saying that the principal lease would be valid and subsisting as regard merely the minerals which had been specifically granted by the principal lease. As regards the principal lease being binding in respect of those minerals, there could be no doubt whatsoever and the concluding clause of the 1919 lease would be unnecessary and meaningless. As regards the metals and minerals which are excluded by cl. 16 there might however be some scope for arguments to what would prevail. But for some apprehension in the mind of the grantor perhaps on account of cl. 6 that there might be some scope of difference as regards the metals and minerals mentioned an cl. 16 of the earlier clause, the inclusion of this clause in the principal lease itself would perhaps be unnecessary. It was as a safeguard against that uncertainty that the concluding sentence of the later lease uses the words that we find.15. It appears to us reasonable therefore to hold that of the two meanings of which the words in the disposition clause are capable, the meaning that the parties intended that the minerals excluded by clause 16 of the principal lease were not covered by the present grant but would remain excluded, should be accepted.The second contention urged by the learned counsel is that in any case acknowledgment by the Receiver of an estate is not an acknowledgment by an agent of the owners of the estate "duly authorised in this behalf" within the meaning of Explanation II of S. 19 of the Limitation Act, and so is not an acknowledgment within the meaning of S. 19(1) of the Limitation Act.The above is a brief indication of the arguments on either side on Mr. Jhas contention that the Receiver has no authority to acknowledge the debts on behalf of the Estate. It is unnecessary for us however to decide for the purpose of the present appeal the question whether a Receiver is an agent of the owners of the estate of which he is the Receiver for the purposes of an acknowledgment of a debt under S. 19 of the Limitation Act.In the present case the suit is based on the second lease of 1919 which was executed in favour of the then Receiver. The acknowledgments by which limitation is claimed to have been saved is by a previous Receiver of the Estate through whom the appellant who is the present Receiver has derive his liability to pay the debts. Section 19 is therefore in terms applicable as the acknowledgments have been signed personally by those previous Receivers and no recourse is needed by the plaintiff to the second part of Explanation II.This position was indeed fairly conceded by Mr. Jha who agreed that in view of this it was not necessary for us to decide whether the Receiver of an Estate is by that fact itself an agent of the owners of the estate duly authorised to make acknowledgments under S. 19 of the Limitation Act.29. There can be no doubt that the acknowledgments on which the plaintiff relies are acknowledgments within the meaning of S. 19 of the Limitation Act and save limitation in respect of the period prior to August 12, 1953. The Courts below were therefore right in rejecting the defendants plea of limitation. | 0 | 6,133 | 1,122 | ### Instruction:
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the letter. In the very first sentence of the letter the Receiver is saying that sum of Rs. 4,993-6-1 as shown in the enclosure to the document was according to him due to the Dhalbhum Raj for the year 1930 on account of royalty; to this he was adding a statement in the second sentence that as soon as this statement of dues was accepted as correct a cheque in payment thereof would be sent. To say that however was not to say that earlier statement of what is due is subject to the acceptance of the accounts. The idea in the second sentence clearly was that in case the statement of what was due was not accepted as correct the matter will have to be decided by further discussion before payment will be made. This second sentence cannot by any stretch of imagination be read as a condition to the statement made in the first sentence. Similarly the first sentence in the second paragraph of the letter as regards the sum of Rs. 31,944-8-3 being royalty up to the end of December 1929 is, as we read the letter, made independent of what was stated in the following sentence and was not subject thereto. The argument that these acknowledgments were conditional acknowledgments has therefore been rightly rejected by the High Court.24. The second contention urged by the learned counsel is that in any case acknowledgment by the Receiver of an estate is not an acknowledgment by an agent of the owners of the estate "duly authorised in this behalf" within the meaning of Explanation II of S. 19 of the Limitation Act, and so is not an acknowledgment within the meaning of S. 19(1) of the Limitation Act.25.According to the learned counsel "duly authorised in this behalf" in Explanation II of S. 19 means "duly authorised by the debtor" and does not include duly authorised by law or by an order of the Court.For this proposition we can find no support either in authority or principle. Explanation II to S. 19 of the Limitation Act in saying "for the purposes of this section signed means signed either personally or by an agent duly authorised in this behalf" has not limited in any way the manner in which the authority can be given.The view taken in this matter by a Full Bench of the Bombay High Court in Annapagonda v. Sangadiappa, ILR 26 Bom 221, that "duly authorised" would include duly authorised either by the action of the party indebted or by force of law or order of the Court has been followed in other High Courts also(Vide Rashbehary v. Anand Ram, ILR 43 Cal 211 : (AIR 1916 Cal 107); Ramcharan Das v. Gaya Prasad, ILR 30 All 422 (FB); Lakshumanan v. Sadayappa, AIR 1919 Mad 816 and Thankamma v. Kunhamma, AIR 1919 Mad 370), and in our opinion represents the correct state of law.26. Mr. Jha has next argued that, in any case, law does not authorise the Receiver of an Estate to make acknowledgments of debt due from the estate. For this proposition he has relied on a decision of the Bombay High Court in Currimbhai v. Ahmedali, ILR 58 Bom 505: (AIR 1933 Bom 91). In that case it was held that an acknowledgment by an official assignee will not amount to an acknowledgment by an agent of the debtor. Thought this case does not deal strictly with the case of a Receiver, Mr. Jha has relied on the reasoning therein as supporting his contention. Our attention has been drawn by Mr. Sanyal, on behalf of the respondent to the fact that a contrary view has been taken in 35 Mad LJ 571: (AIR 1919 Mad 816). Mr. Sanyal has argued that in respect of a debt due from the estate the receiver of the estate fully represents the owners of the estate and that once it is held, as it must be, that the receiver had authority to pay the debt. Mr. Sanyal argues, it must necessarily be held that acknowledgment of a debt as incidental to the Receivers duties in respect of the payment of the debts, is also within his authority. So, he argues that in every case an acknowledgment by a Receiver is an acknowledgment by a duly authorised agent of the debtor.27. The above is a brief indication of the arguments on either side on Mr. Jhas contention that the Receiver has no authority to acknowledge the debts on behalf of the Estate. It is unnecessary for us however to decide for the purpose of the present appeal the question whether a Receiver is an agent of the owners of the estate of which he is the Receiver for the purposes of an acknowledgment of a debt under S. 19 of the Limitation Act.28. In the present case the suit is based on the second lease of 1919 which was executed in favour of the then Receiver. The acknowledgments by which limitation is claimed to have been saved is by a previous Receiver of the Estate through whom the appellant who is the present Receiver has derive his liability to pay the debts. Section 19 is therefore in terms applicable as the acknowledgments have been signed personally by those previous Receivers and no recourse is needed by the plaintiff to the second part of Explanation II.This position was indeed fairly conceded by Mr. Jha who agreed that in view of this it was not necessary for us to decide whether the Receiver of an Estate is by that fact itself an agent of the owners of the estate duly authorised to make acknowledgments under S. 19 of the Limitation Act.29. There can be no doubt that the acknowledgments on which the plaintiff relies are acknowledgments within the meaning of S. 19 of the Limitation Act and save limitation in respect of the period prior to August 12, 1953. The Courts below were therefore right in rejecting the defendants plea of limitation.
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the words used in the disposition clause, understanding the words used in their strict, natural grammatical sense and that once the intention can be clearly understood from the words in the disposition clause this interpreted it is no business of the courts to examine what the parties may have said in other portions of the document. Next it is urged that it if does appear that the later clauses of the document purport to restrict or cut down in any way the effect of the earlier clause disposing of property the earlier clause must prevail. Thirdly it is said that if there be any ambiguity in the disposition clause taken by itself, the benefit of that ambiguity must be given to the grantee, the rule being that all documents of grants must be interpreted strictly as against the grantor. Lastly it was urged that where the operative portion of the document can be interpreted without the aid of the preamble, the preamble ought not and must not be looked into.13. The correctness of these principles is too well established by authorities to justify any detailed discussion. The task being to ascertain the intention of the parties, the cases have laid down that that intention has to be gathered by the words used by the parties themselves. In doing so the parties must be presumed to have used the words in their strict grammatical sense. If and when the parties have first expressed themselves in one way and then go on saying something, which is irreconcilable with what has gone before, the courts have evolved the principle on the theory that what once had been granted cannot next be taken away, that the clear disposition by an earlier clause will not be allowed to be cut down by a later clause. Where there is ambiguity it is the duty of the court to look at all the parts of the document to ascertain what was really intended by the parties. But even here the rule has to be borne in mind that the document being the grantors document it has to be interpreted strictly against him and in favour of theis in our opinion unthinkable that such a clause as this fourth clause would be included in respect of sub-lessees unless it was also the intention of the parties that the lessee himself would be bound by the provisions of cl. 16 of the principal lease. The view that this must have been the intention is strengthened by the concluding words of this lease which provide in substance that notwithstanding anything in the later lease the principal lease would be valid and subsisting. Here also there would be no point in saying that the principal lease would be valid and subsisting as regard merely the minerals which had been specifically granted by the principal lease. As regards the principal lease being binding in respect of those minerals, there could be no doubt whatsoever and the concluding clause of the 1919 lease would be unnecessary and meaningless. As regards the metals and minerals which are excluded by cl. 16 there might however be some scope for arguments to what would prevail. But for some apprehension in the mind of the grantor perhaps on account of cl. 6 that there might be some scope of difference as regards the metals and minerals mentioned an cl. 16 of the earlier clause, the inclusion of this clause in the principal lease itself would perhaps be unnecessary. It was as a safeguard against that uncertainty that the concluding sentence of the later lease uses the words that we find.15. It appears to us reasonable therefore to hold that of the two meanings of which the words in the disposition clause are capable, the meaning that the parties intended that the minerals excluded by clause 16 of the principal lease were not covered by the present grant but would remain excluded, should be accepted.The second contention urged by the learned counsel is that in any case acknowledgment by the Receiver of an estate is not an acknowledgment by an agent of the owners of the estate "duly authorised in this behalf" within the meaning of Explanation II of S. 19 of the Limitation Act, and so is not an acknowledgment within the meaning of S. 19(1) of the Limitation Act.The above is a brief indication of the arguments on either side on Mr. Jhas contention that the Receiver has no authority to acknowledge the debts on behalf of the Estate. It is unnecessary for us however to decide for the purpose of the present appeal the question whether a Receiver is an agent of the owners of the estate of which he is the Receiver for the purposes of an acknowledgment of a debt under S. 19 of the Limitation Act.In the present case the suit is based on the second lease of 1919 which was executed in favour of the then Receiver. The acknowledgments by which limitation is claimed to have been saved is by a previous Receiver of the Estate through whom the appellant who is the present Receiver has derive his liability to pay the debts. Section 19 is therefore in terms applicable as the acknowledgments have been signed personally by those previous Receivers and no recourse is needed by the plaintiff to the second part of Explanation II.This position was indeed fairly conceded by Mr. Jha who agreed that in view of this it was not necessary for us to decide whether the Receiver of an Estate is by that fact itself an agent of the owners of the estate duly authorised to make acknowledgments under S. 19 of the Limitation Act.29. There can be no doubt that the acknowledgments on which the plaintiff relies are acknowledgments within the meaning of S. 19 of the Limitation Act and save limitation in respect of the period prior to August 12, 1953. The Courts below were therefore right in rejecting the defendants plea of limitation.
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Workmen Of The Indian Leaf Tobacco Development Compan Vs. Management Of The Indian Leaf Tobacco Development Co. Ltd | business. The Labour Appellant Tribunal in the case of Employees of Messrs. India Reconstruction Corporation Ltd., Calcutta 1953 Lab AC 563 (supra) was dealing with the question of retrenchment compensation as a result of the closure of one of the units of the company concerned, and it held that the workmen were entitled to retrenchment compensation in accordance with law. This Court in the case of Pipraich Sugar Mills Ltd., 1956 SCR 872 = (AIR 1957 SC 95 ) (supra) only explained why the Labour Appellate Tribunal was justified in granting retrenchment compensation in that case. The opinion expressed by the Court was that, though there is discharge of workmen both when there is retrenchment and closure of business, the compensation is to be awarded under the law, not for discharge as such but for discharge on retrenchment, and if, as is conceded, retrenchment means in ordinary parlance discharge of the surplus, it cannot include discharge on closure of business. It was in this context that the Court went on to add that in the case of Employees of M/s. India Reconstruction Corporation Ltd., Calcutta, 1953 Lab AC 563 (supra) what had happened was that one of the units of the Company had been closed which would be a case of retrenchment and not a case of closure of business. It may be noted that, at the time when this decision was given, Section 25FF and Section 25FFF had not been introduced in the Industrial Disputes Act, and the only right to retrenchment compensation granted to the workmen was conferred by Section 25F. It was in the light of the law then prevailing that the Court felt that the decision of the Labour Appellate Tribunal in the case of Employees of M/s. India Reconstruction Corporation Ltd., Calcutta, 1953 Lab AC 563 (supra) granting retrenchment compensation could be justified on the ground that the services of the workmen had not been dispensed with as a result of closure of business, but as a result of retrenchment. That question does not arise in the case before us. Since then, as we have indicated above, Section 25FF and Section 25FFF have been added in the Industrial Disputes Act, and the latter section specially lays down what rights a workman has when an undertaking is closed down. In a case where a dispute may arise as to whether workmen discharged are entitled to compensation under Section 25F or Sec. 25FFF, it may become necessary to decide whether the closure, as a result of which the services have been dispensed with, amounts to a closure in law or not. In the case before us, it was admitted by learned counsel for both parties that the workmen, who have been discharged as a result of the closure of the 8 depots of the Company, have all been paid retrenchment compensation at the higher rate laid down in Section 25F, so that, in this case, it is not necessary to decide the point raised on behalf of the workmen.9. In connection with the second part of issue No. 1, it was also urged by learned counsel for the appellants that the business, which was being carried on at the 8 depots, had not in fact been closed down and had merely been transferred to buying points situated in and around the closed depots, including two new buying points established by the Company after the closure of these 8 depots. The argument was that the workmen were old employees who had served the Company for a long time and were entitled to certain benefits as a result of that long service. The Company closed these 8 depots mala fide with the object of depriving the workmen of those benefits and merely altered the nature of the business by closing the depots and carrying on the same business at the buying points. This point urged by learned counsel cannot, however, be accepted in view of the findings of fact recorded by Tribunal.10. The Tribunal examined in detail the allegations made on behalf of the workmen in this respect. In fact, the interim award mentions that, for the purpose of deciding the preliminary issue and the first issue, evidence was recorded by the Tribunal for more than a week and arguments of Advocates of the parties were heard for even a longer period. After examining the evidence, the Tribunal came to the conclusion that the stoppage of the work at the depots was genuine and that the work which was being carried on at the depots had not been transferred to the buying points established by the Company. The closure of the business at the depots was necessitated by reasons of expediency inasmuch as the Company had to reduce its purchases in its quest for quality and its desire to run the business economically. The principal work, which used to be done at the depots, was not that of purchasing tobacco, but of handling it and that work was not transferred at all to any buying point.The Tribunal, thus, came to the finding that the closure of these depots was real and genuine and that the suggestion of the appellants that only a device was adopted of carrying on the same business in a different manner had no force at all. If the same business had been continued, though under a different guise, the claim of the workmen not to be retrenched could possibly be considered by the Tribunal; but, on the finding that there was a genuine closure of the business that used to be carried on at the depots, no question could arise of the retrenchment being set aside by the Tribunal. The Tribunal could not ask the Company to re-employ or reinstate the workmen, because there was no business for which the workmen could be required. In these circumstances all that the workmen could claim was compensation for loss of their service and in that respect, as we have indicated above, the workmen have received adequate compensation. | 0[ds]4. The decision given by the Tribunal in the interim award, holding that the reference covered by issue No.1 was not competent, has been challenged by learned counsel for the appellants on the ground that the closure of a depot does not amount to closure of business in law and, since the same business was continued by the Company at atleast 13 other depots, the closure of the 8 depots in question wasclosure of the 8 depots by the Company, even if it is held not to amount to closure of business of the Company, cannot be interfered with by an Industrial Tribunal if, in fact that closure was genuine and real.The closure may be treated as stoppage of part of the activity or business of the Company. Such stoppage of part of a business is an act of management which is entirely in the discretion of the Company carrying on the business. No Industrial Tribunal, even in a reference under S. 10 (1) (d) of the Industrial Disputes Act, can interfere with discretion exercised in such a matter and can have any power to direct a Company to continue a part of the business which the Company has decided to shut down. We cannot possibly accept the submission made on behalf of the appellants that a Tribunal under the Industrial Disputes Act has power to issue orders directing a Company to reopen a closed depot or branch, if the Company, in fact, closes it down.In these circumstances, it is clear that the demand contained in the first part of Issue No. 1 was beyond the powers and jurisdiction of the Industrial Tribunal and was incorrectly referred for adjudication to it by the State Government.7. Of course, if a Company closes down a branch or a depot, the question can always arise as to the relief to which the workmen of that branch or depot are entitled and if such a question arises and becomes the subject-matter of an industrial dispute, an Industrial Tribunal will be fully competent to adjudicate on it.It is unfortunate that, in this case, when dealing with the preliminary issue, the Tribunal expressed its decision in the interim award in general words, holding that Issue No. 1 as a whole was beyond its jurisdiction. If the reasoning in the interim award is taken into account, it is clear that the Tribunal on that reasoning only came to the conclusion that it was not competent to direct reopening of the 8 depots which had been closed, so that the Tribunal should have held that the first part of Issue No. 1 only was outside its jurisdiction.8. So far as the second part of that issue is concerned, as we have said above it was competent for the Tribunal to go into it and decide whether the claim of the workmen that they should not be retrenched wasopinion expressed by the Court was that, though there is discharge of workmen both when there is retrenchment and closure of business, the compensation is to be awarded under the law, not for discharge as such but for discharge on retrenchment, and if, as is conceded, retrenchment means in ordinary parlance discharge of the surplus, it cannot include discharge on closure ofthen, as we have indicated above, Section 25FF and Section 25FFF have been added in the Industrial Disputes Act, and the latter section specially lays down what rights a workman has when an undertaking is closed down. In a case where a dispute may arise as to whether workmen discharged are entitled to compensation under Section 25F or Sec. 25FFF, it may become necessary to decide whether the closure, as a result of which the services have been dispensed with, amounts to a closure in law or not. In the case before us, it was admitted by learned counsel for both parties that the workmen, who have been discharged as a result of the closure of the 8 depots of the Company, have all been paid retrenchment compensation at the higher rate laid down in Section 25F, so that, in this case, it is not necessary to decide the point raised on behalf of the workmen.9. In connection with the second part of issue No. 1, it was also urged by learned counsel for the appellants that the business, which was being carried on at the 8 depots, had not in fact been closed down and had merely been transferred to buying points situated in and around the closed depots, including two new buying points established by the Company after the closure of these 8 depots. The argument was that the workmen were old employees who had served the Company for a long time and were entitled to certain benefits as a result of that long service. The Company closed these 8 depots mala fide with the object of depriving the workmen of those benefits and merely altered the nature of the business by closing the depots and carrying on the same business at the buying points. This point urged by learned counsel cannot, however, be accepted in view of the findings of fact recorded by Tribunal.10. The Tribunal examined in detail the allegations made on behalf of the workmen in this respect. In fact, the interim award mentions that, for the purpose of deciding the preliminary issue and the first issue, evidence was recorded by the Tribunal for more than a week and arguments of Advocates of the parties were heard for even a longer period. After examining the evidence, the Tribunal came to the conclusion that the stoppage of the work at the depots was genuine and that the work which was being carried on at the depots had not been transferred to the buying points established by the Company. The closure of the business at the depots was necessitated by reasons of expediency inasmuch as the Company had to reduce its purchases in its quest for quality and its desire to run the business economically. The principal work, which used to be done at the depots, was not that of purchasing tobacco, but of handling it and that work was not transferred at all to any buying point.The Tribunal, thus, came to the finding that the closure of these depots was real and genuine and that the suggestion of the appellants that only a device was adopted of carrying on the same business in a different manner had no force at all. If the same business had been continued, though under a different guise, the claim of the workmen not to be retrenched could possibly be considered by the Tribunal; but, on the finding that there was a genuine closure of the business that used to be carried on at the depots, no question could arise of the retrenchment being set aside by the Tribunal. The Tribunal could not ask the Company to re-employ or reinstate the workmen, because there was no business for which the workmen could be required. In these circumstances all that the workmen could claim was compensation for loss of their service and in that respect, as we have indicated above, the workmen have received adequate compensation. | 0 | 2,699 | 1,298 | ### 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:
business. The Labour Appellant Tribunal in the case of Employees of Messrs. India Reconstruction Corporation Ltd., Calcutta 1953 Lab AC 563 (supra) was dealing with the question of retrenchment compensation as a result of the closure of one of the units of the company concerned, and it held that the workmen were entitled to retrenchment compensation in accordance with law. This Court in the case of Pipraich Sugar Mills Ltd., 1956 SCR 872 = (AIR 1957 SC 95 ) (supra) only explained why the Labour Appellate Tribunal was justified in granting retrenchment compensation in that case. The opinion expressed by the Court was that, though there is discharge of workmen both when there is retrenchment and closure of business, the compensation is to be awarded under the law, not for discharge as such but for discharge on retrenchment, and if, as is conceded, retrenchment means in ordinary parlance discharge of the surplus, it cannot include discharge on closure of business. It was in this context that the Court went on to add that in the case of Employees of M/s. India Reconstruction Corporation Ltd., Calcutta, 1953 Lab AC 563 (supra) what had happened was that one of the units of the Company had been closed which would be a case of retrenchment and not a case of closure of business. It may be noted that, at the time when this decision was given, Section 25FF and Section 25FFF had not been introduced in the Industrial Disputes Act, and the only right to retrenchment compensation granted to the workmen was conferred by Section 25F. It was in the light of the law then prevailing that the Court felt that the decision of the Labour Appellate Tribunal in the case of Employees of M/s. India Reconstruction Corporation Ltd., Calcutta, 1953 Lab AC 563 (supra) granting retrenchment compensation could be justified on the ground that the services of the workmen had not been dispensed with as a result of closure of business, but as a result of retrenchment. That question does not arise in the case before us. Since then, as we have indicated above, Section 25FF and Section 25FFF have been added in the Industrial Disputes Act, and the latter section specially lays down what rights a workman has when an undertaking is closed down. In a case where a dispute may arise as to whether workmen discharged are entitled to compensation under Section 25F or Sec. 25FFF, it may become necessary to decide whether the closure, as a result of which the services have been dispensed with, amounts to a closure in law or not. In the case before us, it was admitted by learned counsel for both parties that the workmen, who have been discharged as a result of the closure of the 8 depots of the Company, have all been paid retrenchment compensation at the higher rate laid down in Section 25F, so that, in this case, it is not necessary to decide the point raised on behalf of the workmen.9. In connection with the second part of issue No. 1, it was also urged by learned counsel for the appellants that the business, which was being carried on at the 8 depots, had not in fact been closed down and had merely been transferred to buying points situated in and around the closed depots, including two new buying points established by the Company after the closure of these 8 depots. The argument was that the workmen were old employees who had served the Company for a long time and were entitled to certain benefits as a result of that long service. The Company closed these 8 depots mala fide with the object of depriving the workmen of those benefits and merely altered the nature of the business by closing the depots and carrying on the same business at the buying points. This point urged by learned counsel cannot, however, be accepted in view of the findings of fact recorded by Tribunal.10. The Tribunal examined in detail the allegations made on behalf of the workmen in this respect. In fact, the interim award mentions that, for the purpose of deciding the preliminary issue and the first issue, evidence was recorded by the Tribunal for more than a week and arguments of Advocates of the parties were heard for even a longer period. After examining the evidence, the Tribunal came to the conclusion that the stoppage of the work at the depots was genuine and that the work which was being carried on at the depots had not been transferred to the buying points established by the Company. The closure of the business at the depots was necessitated by reasons of expediency inasmuch as the Company had to reduce its purchases in its quest for quality and its desire to run the business economically. The principal work, which used to be done at the depots, was not that of purchasing tobacco, but of handling it and that work was not transferred at all to any buying point.The Tribunal, thus, came to the finding that the closure of these depots was real and genuine and that the suggestion of the appellants that only a device was adopted of carrying on the same business in a different manner had no force at all. If the same business had been continued, though under a different guise, the claim of the workmen not to be retrenched could possibly be considered by the Tribunal; but, on the finding that there was a genuine closure of the business that used to be carried on at the depots, no question could arise of the retrenchment being set aside by the Tribunal. The Tribunal could not ask the Company to re-employ or reinstate the workmen, because there was no business for which the workmen could be required. In these circumstances all that the workmen could claim was compensation for loss of their service and in that respect, as we have indicated above, the workmen have received adequate compensation.
### Response:
0
### Explanation:
business which the Company has decided to shut down. We cannot possibly accept the submission made on behalf of the appellants that a Tribunal under the Industrial Disputes Act has power to issue orders directing a Company to reopen a closed depot or branch, if the Company, in fact, closes it down.In these circumstances, it is clear that the demand contained in the first part of Issue No. 1 was beyond the powers and jurisdiction of the Industrial Tribunal and was incorrectly referred for adjudication to it by the State Government.7. Of course, if a Company closes down a branch or a depot, the question can always arise as to the relief to which the workmen of that branch or depot are entitled and if such a question arises and becomes the subject-matter of an industrial dispute, an Industrial Tribunal will be fully competent to adjudicate on it.It is unfortunate that, in this case, when dealing with the preliminary issue, the Tribunal expressed its decision in the interim award in general words, holding that Issue No. 1 as a whole was beyond its jurisdiction. If the reasoning in the interim award is taken into account, it is clear that the Tribunal on that reasoning only came to the conclusion that it was not competent to direct reopening of the 8 depots which had been closed, so that the Tribunal should have held that the first part of Issue No. 1 only was outside its jurisdiction.8. So far as the second part of that issue is concerned, as we have said above it was competent for the Tribunal to go into it and decide whether the claim of the workmen that they should not be retrenched wasopinion expressed by the Court was that, though there is discharge of workmen both when there is retrenchment and closure of business, the compensation is to be awarded under the law, not for discharge as such but for discharge on retrenchment, and if, as is conceded, retrenchment means in ordinary parlance discharge of the surplus, it cannot include discharge on closure ofthen, as we have indicated above, Section 25FF and Section 25FFF have been added in the Industrial Disputes Act, and the latter section specially lays down what rights a workman has when an undertaking is closed down. In a case where a dispute may arise as to whether workmen discharged are entitled to compensation under Section 25F or Sec. 25FFF, it may become necessary to decide whether the closure, as a result of which the services have been dispensed with, amounts to a closure in law or not. In the case before us, it was admitted by learned counsel for both parties that the workmen, who have been discharged as a result of the closure of the 8 depots of the Company, have all been paid retrenchment compensation at the higher rate laid down in Section 25F, so that, in this case, it is not necessary to decide the point raised on behalf of the workmen.9. In connection with the second part of issue No. 1, it was also urged by learned counsel for the appellants that the business, which was being carried on at the 8 depots, had not in fact been closed down and had merely been transferred to buying points situated in and around the closed depots, including two new buying points established by the Company after the closure of these 8 depots. The argument was that the workmen were old employees who had served the Company for a long time and were entitled to certain benefits as a result of that long service. The Company closed these 8 depots mala fide with the object of depriving the workmen of those benefits and merely altered the nature of the business by closing the depots and carrying on the same business at the buying points. This point urged by learned counsel cannot, however, be accepted in view of the findings of fact recorded by Tribunal.10. The Tribunal examined in detail the allegations made on behalf of the workmen in this respect. In fact, the interim award mentions that, for the purpose of deciding the preliminary issue and the first issue, evidence was recorded by the Tribunal for more than a week and arguments of Advocates of the parties were heard for even a longer period. After examining the evidence, the Tribunal came to the conclusion that the stoppage of the work at the depots was genuine and that the work which was being carried on at the depots had not been transferred to the buying points established by the Company. The closure of the business at the depots was necessitated by reasons of expediency inasmuch as the Company had to reduce its purchases in its quest for quality and its desire to run the business economically. The principal work, which used to be done at the depots, was not that of purchasing tobacco, but of handling it and that work was not transferred at all to any buying point.The Tribunal, thus, came to the finding that the closure of these depots was real and genuine and that the suggestion of the appellants that only a device was adopted of carrying on the same business in a different manner had no force at all. If the same business had been continued, though under a different guise, the claim of the workmen not to be retrenched could possibly be considered by the Tribunal; but, on the finding that there was a genuine closure of the business that used to be carried on at the depots, no question could arise of the retrenchment being set aside by the Tribunal. The Tribunal could not ask the Company to re-employ or reinstate the workmen, because there was no business for which the workmen could be required. In these circumstances all that the workmen could claim was compensation for loss of their service and in that respect, as we have indicated above, the workmen have received adequate compensation.
|
State of Rajasthan & Another Vs. M/s. Karamchand Thappar & Bros | coal could only be supplied to the State of Rajasthan.13. It seems to us that the petitioner is not a dealer within the definition of the word dealer in the first para of S. 2(f), set out above. The petitioner did not sell or supply coal. What it did was to procure the supply of coal. Under the direction issued under cl. (8) of the Colliery Control Order, it is the Equitable Coal Company that supplied the coal directly to the Rajasthan Government. No property in the coal ever passed or could pass to the petitioner. If the agreement dated April 28, 1955, contemplated a sale by the petitioner to the Rajasthan Government, the agreement could not be carried out in view of the provisions of the Colliery Control Order, at least as far as supplies from collieries are concerned, because the collieries could not but obey directions issued under clause (8). Therefore, we must reject the contention of Mr. Tewari that the petitioner fell within the first para of S. 2(f).14. Mr. Tewari put his alternative point thus: The High Court has omitted to notice the explanation to S. 2(f). The petitioner is an agent within the explanation because the Equitable Coal Company had sold or supplied goods to the Rajasthan Government through the petitioner, under the agreement dated September 2, 1948. The Colliery Control Order does not prohibit collieries from securing orders through agents. Under the said agreement, the petitioner had to arrange despatches to cover monthly quantities of coal reserved on its account. Therefore, the petitioner was carrying out its obligations to the Equitable Coal Company when it entered into the agreement dated April 28, 1955.15. It seems to us that there is considerable force in his contention. Clause (1) of the said agreement mentions the collieries from which the coal is to be supplied and these collieries belonged to the Equitable Coal Company. The petitioner charged no remuneration from the Rajasthan Government. It had to supply coal at the controlled rate and, therefore, the only profit which the petitioner could make was from the brokerage it received from the Equitable Coal Company. Therefore, it seems reasonable to conclude from these facts that the petitioner was acting as the agent of the Equitable Coal Company. The fact that the remuneration it received was called brokerage is not conclusive. Whether the petitioner is an agent or not must depend on the facts of each case. Therefore, it is not necessary to discuss the decisions of this Court in G. Gilda Textile Agency v. State of Andhra Pradesh, (1963) 2 SCR 248 and Firm Shivratan G. Mohatta v. Sales Tax Officer, Jodhpur, AIR 1964 Raj 5 relied on by Mr. Tewari. Mr. Sastri contends that the petitioner was also an agent of the Government, but we are unable to agree with him. Apart from the fact that the petitioner was charging no remuneration from the Government, the agreement dated April 28, 1955, read as a whole is clearly between two principals. Accordingly, we hold that the petitioner is an agent within the explanation to S.2(f), and therefore, he is deemed to be a dealer for the purposes of the Act. We may mention that Mr. Sastri has not contended that assuming that the supply of coal amounted to sale the Equitable Coal Company was not carrying on the business of selling or supplying goods within Rajasthan.16. We may now deal with the point raised by Mr. Tewari that the High Court should not have granted relief under Art. 226. He does not dispute that the High Court had the jurisdiction, but he says that on the facts of the case, the High Court should not have interfered. We are unable to agree with him. The High Court has given good reasons for interfering. The High Court observed that "the petitioner had challenged the authority of the State of Rajasthan to enact a law whereby tax on the sale of goods outside the State of Rajasthan could be levied and the application of the law itself to the circumstances of the case. The petitioner has also averred in its petition that it has a fundamental right of free trade and any such imposition infringes this right of the petitioner. We cannot, therefore, entertain the plea in bar."17. Regarding delay, the High Court excused the delay on the following ground:-"The petitioner has also in our opinion adequately explained the delay in seeking relief from this Court. The petitioner has alleged, and this allegation has not been controverted, that the Secretary of the Government Public Works Department, submitted a proposal to the Council on 30th December, 1957, recommending that the transactions under dispute be exempted from the levy of sales tax. The council passed a resolution to that effect on 10th January, 1958, but since the papers were not submitted through the Finance Department, the decision of the Council could not be implemented. This decision was verbally communicated to the petitioner and, therefore, the petitioner did not move this Court earlier. In our opinion, in view of these uncontroverted facts, the petitioner was justified in not rushing to this Court."18. In the result the appeal must succeed, but as the High Court did not deal with the question of the situs of sale or whether the sale was made in the course of inter-State trade, the case must be remitted to the High Court. Although Mr. Tewari has opposed the raising of the question at this stage whether the supply of coal amounted to sale, we are inclined to allow this point to be raised because the question is one of law which can be decided on the material on the records of the case, in the light of the decision of this Court in (1963) Supp 2 SCR 459 :(AIR 1963 SC 1207 ) which was decided after the judgment of the High Court in this case. We express no opinion whether the said decision covers the present case or not. | 1[ds]13. It seems to us that the petitioner is not a dealer within the definition of the word dealer in the first para of S. 2(f), set out above. The petitioner did not sell or supply coal. What it did was to procure the supply of coal. Under the direction issued under cl. (8) of the Colliery Control Order, it is the Equitable Coal Company that supplied the coal directly to the Rajasthan Government. No property in the coal ever passed or could pass to the petitioner. If the agreement dated April 28, 1955, contemplated a sale by the petitioner to the Rajasthan Government, the agreement could not be carried out in view of the provisions of the Colliery Control Order, at least as far as supplies from collieries are concerned, because the collieries could not but obey directions issued under clause (8). Therefore, we must reject the contention of Mr. Tewari that the petitioner fell within the first para of S. 2(f).It seems to us that there is considerable force in his contention. Clause (1) of the said agreement mentions the collieries from which the coal is to be supplied and these collieries belonged to the Equitable Coal Company. The petitioner charged no remuneration from the Rajasthan Government. It had to supply coal at the controlled rate and, therefore, the only profit which the petitioner could make was from the brokerage it received from the Equitable Coal Company. Therefore, it seems reasonable to conclude from these facts that the petitioner was acting as the agent of the Equitable Coal Company. The fact that the remuneration it received was called brokerage is not conclusive. Whether the petitioner is an agent or not must depend on the facts of each case. Therefore, it is not necessary to discuss the decisions of this Court in G. Gilda Textile Agency v. State of Andhra Pradesh, (1963) 2 SCR 248 and Firm Shivratan G. Mohatta v. Sales Tax Officer, Jodhpur, AIR 1964 Raj 5 relied on by Mr. Tewari. Mr. Sastri contends that the petitioner was also an agent of the Government, but we are unable to agree with him. Apart from the fact that the petitioner was charging no remuneration from the Government, the agreement dated April 28, 1955, read as a whole is clearly between two principals. Accordingly, we hold that the petitioner is an agent within the explanation to S.2(f), and therefore, he is deemed to be a dealer for the purposes of the Act. We may mention that Mr. Sastri has not contended that assuming that the supply of coal amounted to sale the Equitable Coal Company was not carrying on the business of selling or supplying goods within Rajasthan.16.We may now deal with the point raised by Mr. Tewari that the High Court should not have granted relief under Art. 226. He does not dispute that the High Court had the jurisdiction, but he says that on the facts of the case, the High Court should not have interfered. We are unable to agree with him.The High Court has given good reasons for interfering. The High Court observed that "the petitioner had challenged the authority of the State of Rajasthan to enact a law whereby tax on the sale of goods outside the State of Rajasthan could be levied and the application of the law itself to the circumstances of the case. The petitioner has also averred in its petition that it has a fundamental right of free trade and any such imposition infringes this right of the petitioner. We cannot, therefore, entertain the plea in bar.In the result the appeal must succeed, but as the High Court did not deal with the question of the situs of sale or whether the sale was made in the course oftrade, the case must be remitted to the High Court. Although Mr. Tewari has opposed the raising of the question at this stage whether the supply of coal amounted to sale, we are inclined to allow this point to be raised because the question is one of law which can be decided on the material on the records of the case, in the light of the decision of this Court in (1963) Supp 2 SCR 459 :(AIR 1963 SC 1207 ) which was decided after the judgment of the High Court in this case. We express no opinion whether the said decision covers the present case or not. | 1 | 3,554 | 823 | ### 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:
coal could only be supplied to the State of Rajasthan.13. It seems to us that the petitioner is not a dealer within the definition of the word dealer in the first para of S. 2(f), set out above. The petitioner did not sell or supply coal. What it did was to procure the supply of coal. Under the direction issued under cl. (8) of the Colliery Control Order, it is the Equitable Coal Company that supplied the coal directly to the Rajasthan Government. No property in the coal ever passed or could pass to the petitioner. If the agreement dated April 28, 1955, contemplated a sale by the petitioner to the Rajasthan Government, the agreement could not be carried out in view of the provisions of the Colliery Control Order, at least as far as supplies from collieries are concerned, because the collieries could not but obey directions issued under clause (8). Therefore, we must reject the contention of Mr. Tewari that the petitioner fell within the first para of S. 2(f).14. Mr. Tewari put his alternative point thus: The High Court has omitted to notice the explanation to S. 2(f). The petitioner is an agent within the explanation because the Equitable Coal Company had sold or supplied goods to the Rajasthan Government through the petitioner, under the agreement dated September 2, 1948. The Colliery Control Order does not prohibit collieries from securing orders through agents. Under the said agreement, the petitioner had to arrange despatches to cover monthly quantities of coal reserved on its account. Therefore, the petitioner was carrying out its obligations to the Equitable Coal Company when it entered into the agreement dated April 28, 1955.15. It seems to us that there is considerable force in his contention. Clause (1) of the said agreement mentions the collieries from which the coal is to be supplied and these collieries belonged to the Equitable Coal Company. The petitioner charged no remuneration from the Rajasthan Government. It had to supply coal at the controlled rate and, therefore, the only profit which the petitioner could make was from the brokerage it received from the Equitable Coal Company. Therefore, it seems reasonable to conclude from these facts that the petitioner was acting as the agent of the Equitable Coal Company. The fact that the remuneration it received was called brokerage is not conclusive. Whether the petitioner is an agent or not must depend on the facts of each case. Therefore, it is not necessary to discuss the decisions of this Court in G. Gilda Textile Agency v. State of Andhra Pradesh, (1963) 2 SCR 248 and Firm Shivratan G. Mohatta v. Sales Tax Officer, Jodhpur, AIR 1964 Raj 5 relied on by Mr. Tewari. Mr. Sastri contends that the petitioner was also an agent of the Government, but we are unable to agree with him. Apart from the fact that the petitioner was charging no remuneration from the Government, the agreement dated April 28, 1955, read as a whole is clearly between two principals. Accordingly, we hold that the petitioner is an agent within the explanation to S.2(f), and therefore, he is deemed to be a dealer for the purposes of the Act. We may mention that Mr. Sastri has not contended that assuming that the supply of coal amounted to sale the Equitable Coal Company was not carrying on the business of selling or supplying goods within Rajasthan.16. We may now deal with the point raised by Mr. Tewari that the High Court should not have granted relief under Art. 226. He does not dispute that the High Court had the jurisdiction, but he says that on the facts of the case, the High Court should not have interfered. We are unable to agree with him. The High Court has given good reasons for interfering. The High Court observed that "the petitioner had challenged the authority of the State of Rajasthan to enact a law whereby tax on the sale of goods outside the State of Rajasthan could be levied and the application of the law itself to the circumstances of the case. The petitioner has also averred in its petition that it has a fundamental right of free trade and any such imposition infringes this right of the petitioner. We cannot, therefore, entertain the plea in bar."17. Regarding delay, the High Court excused the delay on the following ground:-"The petitioner has also in our opinion adequately explained the delay in seeking relief from this Court. The petitioner has alleged, and this allegation has not been controverted, that the Secretary of the Government Public Works Department, submitted a proposal to the Council on 30th December, 1957, recommending that the transactions under dispute be exempted from the levy of sales tax. The council passed a resolution to that effect on 10th January, 1958, but since the papers were not submitted through the Finance Department, the decision of the Council could not be implemented. This decision was verbally communicated to the petitioner and, therefore, the petitioner did not move this Court earlier. In our opinion, in view of these uncontroverted facts, the petitioner was justified in not rushing to this Court."18. In the result the appeal must succeed, but as the High Court did not deal with the question of the situs of sale or whether the sale was made in the course of inter-State trade, the case must be remitted to the High Court. Although Mr. Tewari has opposed the raising of the question at this stage whether the supply of coal amounted to sale, we are inclined to allow this point to be raised because the question is one of law which can be decided on the material on the records of the case, in the light of the decision of this Court in (1963) Supp 2 SCR 459 :(AIR 1963 SC 1207 ) which was decided after the judgment of the High Court in this case. We express no opinion whether the said decision covers the present case or not.
### Response:
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13. It seems to us that the petitioner is not a dealer within the definition of the word dealer in the first para of S. 2(f), set out above. The petitioner did not sell or supply coal. What it did was to procure the supply of coal. Under the direction issued under cl. (8) of the Colliery Control Order, it is the Equitable Coal Company that supplied the coal directly to the Rajasthan Government. No property in the coal ever passed or could pass to the petitioner. If the agreement dated April 28, 1955, contemplated a sale by the petitioner to the Rajasthan Government, the agreement could not be carried out in view of the provisions of the Colliery Control Order, at least as far as supplies from collieries are concerned, because the collieries could not but obey directions issued under clause (8). Therefore, we must reject the contention of Mr. Tewari that the petitioner fell within the first para of S. 2(f).It seems to us that there is considerable force in his contention. Clause (1) of the said agreement mentions the collieries from which the coal is to be supplied and these collieries belonged to the Equitable Coal Company. The petitioner charged no remuneration from the Rajasthan Government. It had to supply coal at the controlled rate and, therefore, the only profit which the petitioner could make was from the brokerage it received from the Equitable Coal Company. Therefore, it seems reasonable to conclude from these facts that the petitioner was acting as the agent of the Equitable Coal Company. The fact that the remuneration it received was called brokerage is not conclusive. Whether the petitioner is an agent or not must depend on the facts of each case. Therefore, it is not necessary to discuss the decisions of this Court in G. Gilda Textile Agency v. State of Andhra Pradesh, (1963) 2 SCR 248 and Firm Shivratan G. Mohatta v. Sales Tax Officer, Jodhpur, AIR 1964 Raj 5 relied on by Mr. Tewari. Mr. Sastri contends that the petitioner was also an agent of the Government, but we are unable to agree with him. Apart from the fact that the petitioner was charging no remuneration from the Government, the agreement dated April 28, 1955, read as a whole is clearly between two principals. Accordingly, we hold that the petitioner is an agent within the explanation to S.2(f), and therefore, he is deemed to be a dealer for the purposes of the Act. We may mention that Mr. Sastri has not contended that assuming that the supply of coal amounted to sale the Equitable Coal Company was not carrying on the business of selling or supplying goods within Rajasthan.16.We may now deal with the point raised by Mr. Tewari that the High Court should not have granted relief under Art. 226. He does not dispute that the High Court had the jurisdiction, but he says that on the facts of the case, the High Court should not have interfered. We are unable to agree with him.The High Court has given good reasons for interfering. The High Court observed that "the petitioner had challenged the authority of the State of Rajasthan to enact a law whereby tax on the sale of goods outside the State of Rajasthan could be levied and the application of the law itself to the circumstances of the case. The petitioner has also averred in its petition that it has a fundamental right of free trade and any such imposition infringes this right of the petitioner. We cannot, therefore, entertain the plea in bar.In the result the appeal must succeed, but as the High Court did not deal with the question of the situs of sale or whether the sale was made in the course oftrade, the case must be remitted to the High Court. Although Mr. Tewari has opposed the raising of the question at this stage whether the supply of coal amounted to sale, we are inclined to allow this point to be raised because the question is one of law which can be decided on the material on the records of the case, in the light of the decision of this Court in (1963) Supp 2 SCR 459 :(AIR 1963 SC 1207 ) which was decided after the judgment of the High Court in this case. We express no opinion whether the said decision covers the present case or not.
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Mathura Prasad Rajgarhia & Others Vs. State of West Bengal | the Tribunal made an error of principle, or has ignored or misconceived important evidence which substantially affected the valuation that its conclusion was vitiated because of substantial error or defect of procedure. We are unable to hold that the judgment of the Tribunal is open to challenge on the ground of error of principle or other infirmity which justified the High Court in interfering with the conclusion of the Tribunal. The valuation of the land by the Tribunal on the basis that the front belt on the Narkeldanga Main Road should be valued at Rupees 3,400/- and adjustments should be made in respect of the rear two belts, and the overall value should be reduced by 121/2% on the ground that a large area of land was acquired, must be accepted as correct.18. The first belt of the land on the Kankurgachi Road was valued on the basis of Ext. 42 which was an award of the Collector for acquiring premises No. 31. The sole criticism made against the adoption of Ext. 42 as the basis of valuation is that though called an award it was in reality an order of the Collector without considering the evidence and on the consent of the claimant and the Improvement Trust Board. The Collector, acting under the Land Acquisition Act is, it is true, not a judicial authority: his proceedings are administrative. As observed by the Judicial Committee in Samiullah v. Collector of Aligarh, 73 Ind App 44 = (AIR 1946 PC 75 ) the Land Acquisition Officer in awarding the amount of compensation under S. 11 of the Land Acquisition Act, 1894, is performing a statutory duty, and in assessing compensation he is bound to exercise his judgment as to the correct basis of valuation, and his judgment cannot be controlled by an agreement between the parties interested. It appears, however, that in Ext. 42 the Collector was not guided solely by the agreement between the claimant and the Improvement Trust Board: he had determined the value of the structures, the value of the fixtures, the value of the machinery, the value of the land, and had made an award for the value determined by him. The valuation of the land was based on the agreement between the claimant and the Improvement Trust Board. The Collector accepted the agreement, which, he was not bound to but could accept and made an award on the basis of the agreed figure. The award had some evidentiary value. The land was being acquired for the Improvement Trust. The Improvement Trust is a statutory body, exercise of the power of which is controlled by the provisions of the Act. Even granting that the order made by the Collector pursuant to the agreement between the Board and the claimant be not regarded as an award, the order made by consent furnished good and cogent evidence of an agreement to purchase property at its market value at the date of the declaration under S. 6 of the Land Acquisition Act. Even if an order made by the Collector valuing land with the consent of the acquiring authority and the claimant may not strictly be regarded as an award made on a consideration of all the relevant materials, the agreement formally reached between the acquiring authority and the claimant agreeing to a certain amount to be paid as compensation for the land acquired is good evidence of the market value of the land. The Tribunal relied upon Ext. 42 as furnishing good evidence of the market value at the relevant time of the land under acquisition. The Tribunal was of the view that a completed contract between the claimant and the Board was a good and sufficient evidence of the price of land. The Collector accepted the agreement and made an award on the basis thereof. It would require strong and cogent reasons to displace the value of the evidence furnished by the order. The award cannot be said to be "null and void". The Tribunal accepted the award and on the basis of that award determined the value of the adjacent land which was also sought to be acquired under the same notification. The Tribunal did not on that account commit any error of law which would justify the High Court in interfering with the conclusion recorded by the Tribunal.19. The Tribunal also relied upon Ext. 35 which furnished some evidence of the value of the land. The Tribunal accepted Exts. 42 and 35 as forming the basis for calculating the market value of the land under acquisition. Sitting in appeal under Section 77A of the Calcutta Improvement Act, the High Court could not set aside the conclusion reached by the Tribunal on a matter of valuation.20. The valuation of the Kankurgachi belt made by the Tribunal and affirmed by the High Court must therefore be accepted.21. No argument was advanced in regard to the additional 1% for vista". The valuation of the land abutting on the Narkeldanga Main Road first belt at Rs. 3,400/- and adjusting the value in respect of the two rear belts, therefore, must be accepted as correct.22. The Tribunal reduced the price determined on the valuation made by it on the basis of Et. 42 and the value of premises No. 43J by 121/2% in the aggregate. On this part of the case no argument has been advanced before us by either side.23. On the view taken by us, without expressing any opinion on the question whether within the meaning of R. 9 of the Schedule to the Calcutta Improvement Act, 1911, disposition of the land at the date of the publication of the declaration relating thereto under S. 6 of the Land Acquisition Act justifies the Court in taking into account the potentialities of the land, we are of the view that the conclusion of the Tribunal was not vitiated by any such error as would attract the jurisdiction of the High Court under S. 77A of the Calcutta Improvement Act, 1911. | 1[ds]We, however, do not think it necessary to dilate upon this question further, because, in our view, the award made by the High Court reducing the amount awarded by the Tribunal cannot be justified on the evidence on the record, and the law applicable thereto. We accede to the request of Mr. Gupte appearing on behalf of the State of West Bengal not to express our opinion on the meaning of the expression "disposition of the land" as used in Rule 9 of the Schedule to the Calcutta Improvement Act, 1911, as it stood at the date when the land was declared to be needed by the Calcutta Improvement Trust under S. 6 of the Land Acquisition Act, 1894.It is common ground that In Calcutta the period between the years 1941 and 1947 was abnormal. During this period first there was bombing of some parts of the town by the Japanese Air Force. This resulted in a large exodus from the town. After the migrant returned, there were communal riots which were followed by the partition of the Province of Bengal. Notwithstanding these abnormal events. in the price level of the land there was an upward trend which was accentuated by the influx of refugees from East Pakistan. It was found by the Tribunal that as a result of theof these events there was between 1941 and 1947 rise of 80% in the value of the land. This, the High Court called, the increase in the price of the land on account of the "time factor". This 80% increase was not restricted to the area which was served by the improvement schemes. In the view of the Tribunal there was a general rise in the price level of the land all over the town, and with that view the High Court agreed. But the High Court still held that in respect of the land benefited by schemes Nos.M2 the rise in land values should be taken to be 80% above the 1941 level.15. In our judgment, the High Court was in error in so holding. Appreciation in the price level in localities served by the Schemes and localities not served by the Schemes cannot be assumed to be uniform. If in respect of the localities not covered by the improvement schemes there was a rise of 80%, for the lands served by the supplementary schemes the rise would be appreciably higher because of the better amenities available as a result of those two schemes. The finding of the Tribunal that the rise of 80% in the value of the lands in the town of Calcutta between 1941 and 1947 was a finding on a question of fact, was accepted by the High Court, as it was bound to accept in an appeal under the Act. The High Court was also bound to accept the finding of the Tribunal that the additional 25% was attributable to the two schemes. That conclusion was not without evidence. In determining the value of land at the date of declaration on the basis of value at an earlier date, it would often be difficult to determine the operation of different factors contributing to the increase in the value of the land, and the valuer may generally take into account the overall rise due to the various factors operating upon the land in determining the market value of the land compulsorily acquired. It would certainly have been more consonant with principle if the Tribunal had instead of bifurcating the appreciation into 80% on account of the general conditions and 25% on the aggregate on account of the special conditions adopted a composite increase. But we are unable to agree that the valuation of the improvements resulting from Schemes Nos.M2 was "completely artificial and speculative". We do not again agree with the High Court that the valuation was not based on "correct principles of valuation". Nor are we able to hold that because the Tribunal did not determine a composite increase resulting from theof all factors, and determined the appreciation from the "time factor" and the additional amenities separately, the conclusion is open to any seriousHigh Court recorded no reasons for assuming that the increase in the price of lands served by the improvement schemes and not served by the schemes will be the same. In effect the High Court discarded without assigning any reasons, the appreciation resulting from the application of the improvement schemes.17. The Tribunal is a statutory body consisting of an expert in valuation with whom are associated assessors. In determining the value of the lands,of various factors has to be taken into account. An Appellate Court may be justified in interfering with the valuation of land made by the Tribunal if it be shown that the Tribunal made an error of principle, or has ignored or misconceived important evidence which substantially affected the valuation that its conclusion was vitiated because of substantial error or defect of procedure. We are unable to hold that the judgment of the Tribunal is open to challenge on the ground of error of principle or other infirmity which justified the High Court in interfering with the conclusion of the Tribunal. The valuation of the land by the Tribunal on the basis that the front belt on the Narkeldanga Main Road should be valued at Rupees 3,400/and adjustments should be made in respect of the rear two belts, and the overall value should be reduced by 121/2% on the ground that a large area of land was acquired, must be accepted as correct.It appears, however, that in Ext. 42 the Collector was not guided solely by the agreement between the claimant and the Improvement Trust Board: he had determined the value of the structures, the value of the fixtures, the value of the machinery, the value of the land, and had made an award for the value determined by him. The valuation of the land was based on the agreement between the claimant and the Improvement Trust Board. The Collector accepted the agreement, which, he was not bound to but could accept and made an award on the basis of the agreed figure. The award had some evidentiary value. The land was being acquired for the Improvement Trust. The Improvement Trust is a statutory body, exercise of the power of which is controlled by the provisions of the Act. Even granting that the order made by the Collector pursuant to the agreement between the Board and the claimant be not regarded as an award, the order made by consent furnished good and cogent evidence of an agreement to purchase property at its market value at the date of the declaration under S. 6 of the Land Acquisition Act. Even if an order made by the Collector valuing land with the consent of the acquiring authority and the claimant may not strictly be regarded as an award made on a consideration of all the relevant materials, the agreement formally reached between the acquiring authority and the claimant agreeing to a certain amount to be paid as compensation for the land acquired is good evidence of the market value of the land. The Tribunal relied upon Ext. 42 as furnishing good evidence of the market value at the relevant time of the land under acquisition. The Tribunal was of the view that a completed contract between the claimant and the Board was a good and sufficient evidence of the price of land. The Collector accepted the agreement and made an award on the basis thereof. It would require strong and cogent reasons to displace the value of the evidence furnished by the order. The award cannot be said to be "null and void". The Tribunal accepted the award and on the basis of that award determined the value of the adjacent land which was also sought to be acquired under the same notification. The Tribunal did not on that account commit any error of law which would justify the High Court in interfering with the conclusion recorded by the Tribunal.19. The Tribunal also relied upon Ext. 35 which furnished some evidence of the value of the land. The Tribunal accepted Exts. 42 and 35 as forming the basis for calculating the market value of the land under acquisition. Sitting in appeal under Section 77A of the Calcutta Improvement Act, the High Court could not set aside the conclusion reached by the Tribunal on a matter of valuation.20. The valuation of the Kankurgachi belt made by the Tribunal and affirmed by the High Court must therefore be accepted.21. No argument was advanced in regard to the additional 1% for vista". The valuation of the land abutting on the Narkeldanga Main Road first belt at Rs. 3,400/and adjusting the value in respect of the two rear belts, therefore, must be accepted as correct.22. The Tribunal reduced the price determined on the valuation made by it on the basis of Et. 42 and the value of premises No. 43J by 121/2% in the aggregate. On this part of the case no argument has been advanced before us by either side.23. On the view taken by us, without expressing any opinion on the question whether within the meaning of R. 9 of the Schedule to the Calcutta Improvement Act, 1911, disposition of the land at the date of the publication of the declaration relating thereto under S. 6 of the Land Acquisition Act justifies the Court in taking into account the potentialities of the land, we are of the view that the conclusion of the Tribunal was not vitiated by any such error as would attract the jurisdiction of the High Court under S. 77A of the Calcutta Improvement Act, 1911. | 1 | 5,031 | 1,753 | ### Instruction:
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the Tribunal made an error of principle, or has ignored or misconceived important evidence which substantially affected the valuation that its conclusion was vitiated because of substantial error or defect of procedure. We are unable to hold that the judgment of the Tribunal is open to challenge on the ground of error of principle or other infirmity which justified the High Court in interfering with the conclusion of the Tribunal. The valuation of the land by the Tribunal on the basis that the front belt on the Narkeldanga Main Road should be valued at Rupees 3,400/- and adjustments should be made in respect of the rear two belts, and the overall value should be reduced by 121/2% on the ground that a large area of land was acquired, must be accepted as correct.18. The first belt of the land on the Kankurgachi Road was valued on the basis of Ext. 42 which was an award of the Collector for acquiring premises No. 31. The sole criticism made against the adoption of Ext. 42 as the basis of valuation is that though called an award it was in reality an order of the Collector without considering the evidence and on the consent of the claimant and the Improvement Trust Board. The Collector, acting under the Land Acquisition Act is, it is true, not a judicial authority: his proceedings are administrative. As observed by the Judicial Committee in Samiullah v. Collector of Aligarh, 73 Ind App 44 = (AIR 1946 PC 75 ) the Land Acquisition Officer in awarding the amount of compensation under S. 11 of the Land Acquisition Act, 1894, is performing a statutory duty, and in assessing compensation he is bound to exercise his judgment as to the correct basis of valuation, and his judgment cannot be controlled by an agreement between the parties interested. It appears, however, that in Ext. 42 the Collector was not guided solely by the agreement between the claimant and the Improvement Trust Board: he had determined the value of the structures, the value of the fixtures, the value of the machinery, the value of the land, and had made an award for the value determined by him. The valuation of the land was based on the agreement between the claimant and the Improvement Trust Board. The Collector accepted the agreement, which, he was not bound to but could accept and made an award on the basis of the agreed figure. The award had some evidentiary value. The land was being acquired for the Improvement Trust. The Improvement Trust is a statutory body, exercise of the power of which is controlled by the provisions of the Act. Even granting that the order made by the Collector pursuant to the agreement between the Board and the claimant be not regarded as an award, the order made by consent furnished good and cogent evidence of an agreement to purchase property at its market value at the date of the declaration under S. 6 of the Land Acquisition Act. Even if an order made by the Collector valuing land with the consent of the acquiring authority and the claimant may not strictly be regarded as an award made on a consideration of all the relevant materials, the agreement formally reached between the acquiring authority and the claimant agreeing to a certain amount to be paid as compensation for the land acquired is good evidence of the market value of the land. The Tribunal relied upon Ext. 42 as furnishing good evidence of the market value at the relevant time of the land under acquisition. The Tribunal was of the view that a completed contract between the claimant and the Board was a good and sufficient evidence of the price of land. The Collector accepted the agreement and made an award on the basis thereof. It would require strong and cogent reasons to displace the value of the evidence furnished by the order. The award cannot be said to be "null and void". The Tribunal accepted the award and on the basis of that award determined the value of the adjacent land which was also sought to be acquired under the same notification. The Tribunal did not on that account commit any error of law which would justify the High Court in interfering with the conclusion recorded by the Tribunal.19. The Tribunal also relied upon Ext. 35 which furnished some evidence of the value of the land. The Tribunal accepted Exts. 42 and 35 as forming the basis for calculating the market value of the land under acquisition. Sitting in appeal under Section 77A of the Calcutta Improvement Act, the High Court could not set aside the conclusion reached by the Tribunal on a matter of valuation.20. The valuation of the Kankurgachi belt made by the Tribunal and affirmed by the High Court must therefore be accepted.21. No argument was advanced in regard to the additional 1% for vista". The valuation of the land abutting on the Narkeldanga Main Road first belt at Rs. 3,400/- and adjusting the value in respect of the two rear belts, therefore, must be accepted as correct.22. The Tribunal reduced the price determined on the valuation made by it on the basis of Et. 42 and the value of premises No. 43J by 121/2% in the aggregate. On this part of the case no argument has been advanced before us by either side.23. On the view taken by us, without expressing any opinion on the question whether within the meaning of R. 9 of the Schedule to the Calcutta Improvement Act, 1911, disposition of the land at the date of the publication of the declaration relating thereto under S. 6 of the Land Acquisition Act justifies the Court in taking into account the potentialities of the land, we are of the view that the conclusion of the Tribunal was not vitiated by any such error as would attract the jurisdiction of the High Court under S. 77A of the Calcutta Improvement Act, 1911.
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of the improvements resulting from Schemes Nos.M2 was "completely artificial and speculative". We do not again agree with the High Court that the valuation was not based on "correct principles of valuation". Nor are we able to hold that because the Tribunal did not determine a composite increase resulting from theof all factors, and determined the appreciation from the "time factor" and the additional amenities separately, the conclusion is open to any seriousHigh Court recorded no reasons for assuming that the increase in the price of lands served by the improvement schemes and not served by the schemes will be the same. In effect the High Court discarded without assigning any reasons, the appreciation resulting from the application of the improvement schemes.17. The Tribunal is a statutory body consisting of an expert in valuation with whom are associated assessors. In determining the value of the lands,of various factors has to be taken into account. An Appellate Court may be justified in interfering with the valuation of land made by the Tribunal if it be shown that the Tribunal made an error of principle, or has ignored or misconceived important evidence which substantially affected the valuation that its conclusion was vitiated because of substantial error or defect of procedure. We are unable to hold that the judgment of the Tribunal is open to challenge on the ground of error of principle or other infirmity which justified the High Court in interfering with the conclusion of the Tribunal. The valuation of the land by the Tribunal on the basis that the front belt on the Narkeldanga Main Road should be valued at Rupees 3,400/and adjustments should be made in respect of the rear two belts, and the overall value should be reduced by 121/2% on the ground that a large area of land was acquired, must be accepted as correct.It appears, however, that in Ext. 42 the Collector was not guided solely by the agreement between the claimant and the Improvement Trust Board: he had determined the value of the structures, the value of the fixtures, the value of the machinery, the value of the land, and had made an award for the value determined by him. The valuation of the land was based on the agreement between the claimant and the Improvement Trust Board. The Collector accepted the agreement, which, he was not bound to but could accept and made an award on the basis of the agreed figure. The award had some evidentiary value. The land was being acquired for the Improvement Trust. The Improvement Trust is a statutory body, exercise of the power of which is controlled by the provisions of the Act. Even granting that the order made by the Collector pursuant to the agreement between the Board and the claimant be not regarded as an award, the order made by consent furnished good and cogent evidence of an agreement to purchase property at its market value at the date of the declaration under S. 6 of the Land Acquisition Act. Even if an order made by the Collector valuing land with the consent of the acquiring authority and the claimant may not strictly be regarded as an award made on a consideration of all the relevant materials, the agreement formally reached between the acquiring authority and the claimant agreeing to a certain amount to be paid as compensation for the land acquired is good evidence of the market value of the land. The Tribunal relied upon Ext. 42 as furnishing good evidence of the market value at the relevant time of the land under acquisition. The Tribunal was of the view that a completed contract between the claimant and the Board was a good and sufficient evidence of the price of land. The Collector accepted the agreement and made an award on the basis thereof. It would require strong and cogent reasons to displace the value of the evidence furnished by the order. The award cannot be said to be "null and void". The Tribunal accepted the award and on the basis of that award determined the value of the adjacent land which was also sought to be acquired under the same notification. The Tribunal did not on that account commit any error of law which would justify the High Court in interfering with the conclusion recorded by the Tribunal.19. The Tribunal also relied upon Ext. 35 which furnished some evidence of the value of the land. The Tribunal accepted Exts. 42 and 35 as forming the basis for calculating the market value of the land under acquisition. Sitting in appeal under Section 77A of the Calcutta Improvement Act, the High Court could not set aside the conclusion reached by the Tribunal on a matter of valuation.20. The valuation of the Kankurgachi belt made by the Tribunal and affirmed by the High Court must therefore be accepted.21. No argument was advanced in regard to the additional 1% for vista". The valuation of the land abutting on the Narkeldanga Main Road first belt at Rs. 3,400/and adjusting the value in respect of the two rear belts, therefore, must be accepted as correct.22. The Tribunal reduced the price determined on the valuation made by it on the basis of Et. 42 and the value of premises No. 43J by 121/2% in the aggregate. On this part of the case no argument has been advanced before us by either side.23. On the view taken by us, without expressing any opinion on the question whether within the meaning of R. 9 of the Schedule to the Calcutta Improvement Act, 1911, disposition of the land at the date of the publication of the declaration relating thereto under S. 6 of the Land Acquisition Act justifies the Court in taking into account the potentialities of the land, we are of the view that the conclusion of the Tribunal was not vitiated by any such error as would attract the jurisdiction of the High Court under S. 77A of the Calcutta Improvement Act, 1911.
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ASSET RECONSTRUCTION CO. (INDIA) LTD Vs. CHIEF CONTROLLING REVENUE AUTHORITY | that the above reasoning can be accepted. First of all, what was presented for registration by the appellant was a single document namely an Assignment Agreement. Clause 11.12 of the Assignment Agreement contained recitals to the effect that the seller (assignor, namely the OBC) had agreed to execute simultaneously with the execution of the deed of assignment, an irrevocable PoA, substantially in the form set out in Schedule 3. What was contained in Schedule 3 to the Assignment Agreement was the format of an irrevocable PoA. 9. The High Court overlooked the fact that there was no independent instrument of PoA and that in any case, the power of sale of a secured asset flowed out of the provisions of the Securitisation Act, 2002 and not out of an independent instrument of PoA. Section 2(zd) of the Securitisation Act, 2002 defines a secured creditor to mean and include an Asset Reconstruction Company. The appellant has acquired the financial assets of OBC in terms of Section 5(1)(b) of the Securitisation Act, 2002. Therefore, under sub--section (2) of Section 5 of the Securitisation Act, 2002, the appellant shall be deemed to be the lender and all the rights of the Bank vested in them. In fact, under Amendment Act 44 of 2016, sub--section (1A) was inserted in Section 5 of the Securitisation Act, exempting from stamp duty, any document executed by any bank under Section 5(1) in favour of an Asset Reconstruction Company acquiring financial assets for the purposes of asset reconstruction or securitization. Though the said amendment may not be applicable to the case of the appellant, as the deed of assignment, in this case, was executed long prior to the amendment, we have just taken note of the amendment to show how far the Parliament has gone. 10. Article 45(f) of Schedule I to Act, reads as follows:- (f) (i) when given for consideration and authorizing the attorney to sell any immovable property The same duty as is leviable on a conveyance under Article 20 for the amount of the consideration or, as the case may be, the market value of the immovable property whichever is greater; 11. For invoking Article 45(f), two conditions have to be satisfied. They are, (i) the PoA should have been given for a consideration; and (ii) an authorization to sell any immovable property should flow out of the instrument. 12. In the case on hand, the consideration paid by the appellant to OBC, was for the purpose of acquisition of the financial assets, in respect of a particular borrower. The draft of the PoA contained in Schedule 3 of the deed of assignment was only incidental to the deed of assignment. The deed of assignment has already been charged to duty under Article 20(a) which deals with conveyance. In fact Article 45(f) also requires a PoA covered by the said provision to be chargeable to stamp duty under Article 20. 13. But what has happened in this case was that under a Notification bearing No.GHM/2002--5--M STP--102000--2749/H--1 dated 25th January, 2002, the Government ordered the reduction of stamp duty payable on an instrument of securitization of loans or assignment of debt with underlying securities, to 75 paise for every Rs.1000 or part thereof. This Notification reads as follows:- In exercise of the powers conferred by clause (a) of Section 9 of the Bombay Stamp Act, 1958 (Bom LX of 1958) and in supersession of Government Orders Revenue Department No. GHM--98--22--M--STP--1096--2527--H--1 dated 26.02.1998, the Government of Gujarat hereby reduces from the date of publication of this order the duty with which an instrument of securitization of loans or assignment of debt with underlying securities chargeable under Article 20 (a) of Schedule I to the said Act to 75 paise for every rupees 1000 or part thereof the loan securitised or debt assigned with underlying securities. By order and in the name of the Governor of Gujarat. 14. The above Notification was amended by a subsequent Notification bearing No. GHM/2003/28/STP/102002/2065/H--1 dated 1st April, 2003. The said Notification reads as follows:- In exercise of powers conferred by clause (a) of section 9 of the Bombay Stamp Act, 1958 (Bom LX of 1958), the Government of Gujarat hereby amends Government Order No. GHM/2002/5/M/STP/102000/ 2749/H--1, dated 25th January, 2002 as follows, namely:- In the said order, for the words and figures to seventy five paise for every rupees 1000 or part thereof the words and figures subject to maximum of rupees one lakhs, seventy--five paise for every rupees 1000 or part thereof shall be substituted. By order and in the name of the Governor of Gujarat. 15. In view of the Notification dated 01.04.2003 issued in exercise of the power to reduce, remit or compound the duty, conferred by Section 9(a) of the Act, the amount of duty chargeable in terms of Article 20(a) was capped at Rs. 1,00,000/--. In addition to the said amount of Rs.1,00,000/--, the appellant was asked to pay an additional duty of Rs.40,000/-- under Section 3--A. The appellant has thus paid a total amount of Rs.1,40,000/-- with the instrument having been charged as a conveyance under Article 20(a). 16. In all taxing Statutes, there are taxing provisions and machinery provisions. Once a single instrument has been charged under a correct charging provision of the Statute, namely Article 20(a), the Revenue cannot split the instrument into two, because of the reduction in the stamp duty facilitated by a notification of the Government issued under Section 9(a). In other words after having accepted the deed of assignment as an instrument chargeable to duty as a conveyance under Article 20(a) and after having collected the duty payable on the same, it is not open to the respondent to subject the same instrument to duty once again under Article 45(f), merely because the appellant had the benefit of the notifications under Section 9(a). Since the impugned order of the High Court did not address these issues and went solely on the interpretation of Article 45(f), the same is unsustainable. | 1[ds]8. But we do not think that the above reasoning can be accepted. First of all, what was presented for registration by the appellant was a single document namely an Assignment Agreement. Clause 11.12 of the Assignment Agreement contained recitals to the effect that the seller (assignor, namely the OBC) had agreed to execute simultaneously with the execution of the deed of assignment, an irrevocable PoA, substantially in the form set out in Schedule 3. What was contained in Schedule 3 to the Assignment Agreement was the format of an irrevocable PoA.9. The High Court overlooked the fact that there was no independent instrument of PoA and that in any case, the power of sale of a secured asset flowed out of the provisions of the Securitisation Act, 2002 and not out of an independent instrument of PoA. Section 2(zd) of the Securitisation Act, 2002 defines a secured creditor to mean and include an Asset Reconstruction Company. The appellant has acquired the financial assets of OBC in terms of Section 5(1)(b) of the Securitisation Act, 2002. Therefore, under sub--section (2) of Section 5 of the Securitisation Act, 2002, the appellant shall be deemed to be the lender and all the rights of the Bank vested in them. In fact, under Amendment Act 44 of 2016, sub--section (1A) was inserted in Section 5 of the Securitisation Act, exempting from stamp duty, any document executed by any bank under Section 5(1) in favour of an Asset Reconstruction Company acquiring financial assets for the purposes of asset reconstruction or securitization. Though the said amendment may not be applicable to the case of the appellant, as the deed of assignment, in this case, was executed long prior to the amendment, we have just taken note of the amendment to show how far the Parliament has gone.11. For invoking Article 45(f), two conditions have to be satisfied. They are, (i) the PoA should have been given for a consideration; and (ii) an authorization to sell any immovable property should flow out of the instrument.12. In the case on hand, the consideration paid by the appellant to OBC, was for the purpose of acquisition of the financial assets, in respect of a particular borrower. The draft of the PoA contained in Schedule 3 of the deed of assignment was only incidental to the deed of assignment. The deed of assignment has already been charged to duty under Article 20(a) which deals with conveyance. In fact Article 45(f) also requires a PoA covered by the said provision to be chargeable to stamp duty under Article 20.13. But what has happened in this case was that under a Notification bearing No.GHM/2002--5--M STP--102000--2749/H--1 dated 25th January, 2002, the Government ordered the reduction of stamp duty payable on an instrument of securitization of loans or assignment of debt with underlying securities, to 75 paise for every Rs.1000 or part thereof.15. In view of the Notification dated 01.04.2003 issued in exercise of the power to reduce, remit or compound the duty, conferred by Section 9(a) of the Act, the amount of duty chargeable in terms of Article 20(a) was capped at Rs. 1,00,000/--. In addition to the said amount of Rs.1,00,000/--, the appellant was asked to pay an additional duty of Rs.40,000/-- under Section 3--A. The appellant has thus paid a total amount of Rs.1,40,000/-- with the instrument having been charged as a conveyance under Article 20(a).16. In all taxing Statutes, there are taxing provisions and machinery provisions. Once a single instrument has been charged under a correct charging provision of the Statute, namely Article 20(a), the Revenue cannot split the instrument into two, because of the reduction in the stamp duty facilitated by a notification of the Government issued under Section 9(a). In other words after having accepted the deed of assignment as an instrument chargeable to duty as a conveyance under Article 20(a) and after having collected the duty payable on the same, it is not open to the respondent to subject the same instrument to duty once again under Article 45(f), merely because the appellant had the benefit of the notifications under Section 9(a). Since the impugned order of the High Court did not address these issues and went solely on the interpretation of Article 45(f), the same is unsustainable. | 1 | 1,956 | 861 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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that the above reasoning can be accepted. First of all, what was presented for registration by the appellant was a single document namely an Assignment Agreement. Clause 11.12 of the Assignment Agreement contained recitals to the effect that the seller (assignor, namely the OBC) had agreed to execute simultaneously with the execution of the deed of assignment, an irrevocable PoA, substantially in the form set out in Schedule 3. What was contained in Schedule 3 to the Assignment Agreement was the format of an irrevocable PoA. 9. The High Court overlooked the fact that there was no independent instrument of PoA and that in any case, the power of sale of a secured asset flowed out of the provisions of the Securitisation Act, 2002 and not out of an independent instrument of PoA. Section 2(zd) of the Securitisation Act, 2002 defines a secured creditor to mean and include an Asset Reconstruction Company. The appellant has acquired the financial assets of OBC in terms of Section 5(1)(b) of the Securitisation Act, 2002. Therefore, under sub--section (2) of Section 5 of the Securitisation Act, 2002, the appellant shall be deemed to be the lender and all the rights of the Bank vested in them. In fact, under Amendment Act 44 of 2016, sub--section (1A) was inserted in Section 5 of the Securitisation Act, exempting from stamp duty, any document executed by any bank under Section 5(1) in favour of an Asset Reconstruction Company acquiring financial assets for the purposes of asset reconstruction or securitization. Though the said amendment may not be applicable to the case of the appellant, as the deed of assignment, in this case, was executed long prior to the amendment, we have just taken note of the amendment to show how far the Parliament has gone. 10. Article 45(f) of Schedule I to Act, reads as follows:- (f) (i) when given for consideration and authorizing the attorney to sell any immovable property The same duty as is leviable on a conveyance under Article 20 for the amount of the consideration or, as the case may be, the market value of the immovable property whichever is greater; 11. For invoking Article 45(f), two conditions have to be satisfied. They are, (i) the PoA should have been given for a consideration; and (ii) an authorization to sell any immovable property should flow out of the instrument. 12. In the case on hand, the consideration paid by the appellant to OBC, was for the purpose of acquisition of the financial assets, in respect of a particular borrower. The draft of the PoA contained in Schedule 3 of the deed of assignment was only incidental to the deed of assignment. The deed of assignment has already been charged to duty under Article 20(a) which deals with conveyance. In fact Article 45(f) also requires a PoA covered by the said provision to be chargeable to stamp duty under Article 20. 13. But what has happened in this case was that under a Notification bearing No.GHM/2002--5--M STP--102000--2749/H--1 dated 25th January, 2002, the Government ordered the reduction of stamp duty payable on an instrument of securitization of loans or assignment of debt with underlying securities, to 75 paise for every Rs.1000 or part thereof. This Notification reads as follows:- In exercise of the powers conferred by clause (a) of Section 9 of the Bombay Stamp Act, 1958 (Bom LX of 1958) and in supersession of Government Orders Revenue Department No. GHM--98--22--M--STP--1096--2527--H--1 dated 26.02.1998, the Government of Gujarat hereby reduces from the date of publication of this order the duty with which an instrument of securitization of loans or assignment of debt with underlying securities chargeable under Article 20 (a) of Schedule I to the said Act to 75 paise for every rupees 1000 or part thereof the loan securitised or debt assigned with underlying securities. By order and in the name of the Governor of Gujarat. 14. The above Notification was amended by a subsequent Notification bearing No. GHM/2003/28/STP/102002/2065/H--1 dated 1st April, 2003. The said Notification reads as follows:- In exercise of powers conferred by clause (a) of section 9 of the Bombay Stamp Act, 1958 (Bom LX of 1958), the Government of Gujarat hereby amends Government Order No. GHM/2002/5/M/STP/102000/ 2749/H--1, dated 25th January, 2002 as follows, namely:- In the said order, for the words and figures to seventy five paise for every rupees 1000 or part thereof the words and figures subject to maximum of rupees one lakhs, seventy--five paise for every rupees 1000 or part thereof shall be substituted. By order and in the name of the Governor of Gujarat. 15. In view of the Notification dated 01.04.2003 issued in exercise of the power to reduce, remit or compound the duty, conferred by Section 9(a) of the Act, the amount of duty chargeable in terms of Article 20(a) was capped at Rs. 1,00,000/--. In addition to the said amount of Rs.1,00,000/--, the appellant was asked to pay an additional duty of Rs.40,000/-- under Section 3--A. The appellant has thus paid a total amount of Rs.1,40,000/-- with the instrument having been charged as a conveyance under Article 20(a). 16. In all taxing Statutes, there are taxing provisions and machinery provisions. Once a single instrument has been charged under a correct charging provision of the Statute, namely Article 20(a), the Revenue cannot split the instrument into two, because of the reduction in the stamp duty facilitated by a notification of the Government issued under Section 9(a). In other words after having accepted the deed of assignment as an instrument chargeable to duty as a conveyance under Article 20(a) and after having collected the duty payable on the same, it is not open to the respondent to subject the same instrument to duty once again under Article 45(f), merely because the appellant had the benefit of the notifications under Section 9(a). Since the impugned order of the High Court did not address these issues and went solely on the interpretation of Article 45(f), the same is unsustainable.
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8. But we do not think that the above reasoning can be accepted. First of all, what was presented for registration by the appellant was a single document namely an Assignment Agreement. Clause 11.12 of the Assignment Agreement contained recitals to the effect that the seller (assignor, namely the OBC) had agreed to execute simultaneously with the execution of the deed of assignment, an irrevocable PoA, substantially in the form set out in Schedule 3. What was contained in Schedule 3 to the Assignment Agreement was the format of an irrevocable PoA.9. The High Court overlooked the fact that there was no independent instrument of PoA and that in any case, the power of sale of a secured asset flowed out of the provisions of the Securitisation Act, 2002 and not out of an independent instrument of PoA. Section 2(zd) of the Securitisation Act, 2002 defines a secured creditor to mean and include an Asset Reconstruction Company. The appellant has acquired the financial assets of OBC in terms of Section 5(1)(b) of the Securitisation Act, 2002. Therefore, under sub--section (2) of Section 5 of the Securitisation Act, 2002, the appellant shall be deemed to be the lender and all the rights of the Bank vested in them. In fact, under Amendment Act 44 of 2016, sub--section (1A) was inserted in Section 5 of the Securitisation Act, exempting from stamp duty, any document executed by any bank under Section 5(1) in favour of an Asset Reconstruction Company acquiring financial assets for the purposes of asset reconstruction or securitization. Though the said amendment may not be applicable to the case of the appellant, as the deed of assignment, in this case, was executed long prior to the amendment, we have just taken note of the amendment to show how far the Parliament has gone.11. For invoking Article 45(f), two conditions have to be satisfied. They are, (i) the PoA should have been given for a consideration; and (ii) an authorization to sell any immovable property should flow out of the instrument.12. In the case on hand, the consideration paid by the appellant to OBC, was for the purpose of acquisition of the financial assets, in respect of a particular borrower. The draft of the PoA contained in Schedule 3 of the deed of assignment was only incidental to the deed of assignment. The deed of assignment has already been charged to duty under Article 20(a) which deals with conveyance. In fact Article 45(f) also requires a PoA covered by the said provision to be chargeable to stamp duty under Article 20.13. But what has happened in this case was that under a Notification bearing No.GHM/2002--5--M STP--102000--2749/H--1 dated 25th January, 2002, the Government ordered the reduction of stamp duty payable on an instrument of securitization of loans or assignment of debt with underlying securities, to 75 paise for every Rs.1000 or part thereof.15. In view of the Notification dated 01.04.2003 issued in exercise of the power to reduce, remit or compound the duty, conferred by Section 9(a) of the Act, the amount of duty chargeable in terms of Article 20(a) was capped at Rs. 1,00,000/--. In addition to the said amount of Rs.1,00,000/--, the appellant was asked to pay an additional duty of Rs.40,000/-- under Section 3--A. The appellant has thus paid a total amount of Rs.1,40,000/-- with the instrument having been charged as a conveyance under Article 20(a).16. In all taxing Statutes, there are taxing provisions and machinery provisions. Once a single instrument has been charged under a correct charging provision of the Statute, namely Article 20(a), the Revenue cannot split the instrument into two, because of the reduction in the stamp duty facilitated by a notification of the Government issued under Section 9(a). In other words after having accepted the deed of assignment as an instrument chargeable to duty as a conveyance under Article 20(a) and after having collected the duty payable on the same, it is not open to the respondent to subject the same instrument to duty once again under Article 45(f), merely because the appellant had the benefit of the notifications under Section 9(a). Since the impugned order of the High Court did not address these issues and went solely on the interpretation of Article 45(f), the same is unsustainable.
|
M/S. GOEL GANGA DEVELOPERS INDIA PVT. LTD Vs. UNION OF INDIA THROUGH SECRETARY MINISTRY OF ENVIRONMENT AND FOREST | the original applicant has also challenged the original order of the NGT. While assessing the damages we may note certain facts:1) The EC was granted on 04.04.2008 but construction commenced after issuance of consent to establish dated 20.06.2009 and the EC would be valid for a period of 5 years from the date of such consent, i.e. upto 19.06.2014;2) The EC dated 04.04.2008 was granted for construction of built up area 57,658.42 sq.mtrs., whereas admittedly, as of now the constructed built up area is 1,00,002.25 sq. mtrs.. Therefore, there is clear-cut violation of the terms of the EC;3) Any construction raised after 19.06.2014 is without any EC especially since we have held that EC granted on 20.11.2017 is invalid.Carbon Footprint:52. The main case of the original applicant is that the damages should be assessed on a scientific basis by calculating the damage caused to the environment by the project proponent on the basis of Carbon Footprint. In the absence of detailed submissions, we find ourselves totally unequipped to go into this aspect of the matter.53. In the original application filed by the original applicant before the NGT, there is no reference to Carbon Footprint. Even when evidence was initially led, no reference was made to the same. The concept of Carbon Footprint was introduced by the original applicant only in his affidavit dated 18.05.2016. In fact, according to the project proponent this affidavit was not even filed on 18.05.2016. It appears to us that there is no order of the NGT specifically permitting the original applicant to file such an affidavit. The submission of original applicant is that he was orally permitted to file the same. These disputed questions would have been only decided by the Original Bench and, therefore, we have already set aside the order passed in the review application dated 08.01.2018.54. Courts cannot introduce a new concept of assessing and levying damages unless expert evidence in this behalf is led or there are some well established principles. We find that no such principles have been accepted or established in the present case. When there are no pleadings in this regard we fail to understand how the concept of Carbon Footprint can be introduced after evidence has been closed, at the stage of arguments. We cannot assess the impact in actual terms and, therefore, we can only impose damages or costs on principles which have been well settled by law.55. We may also note that the method to which the original applicant referred to is not part of any law, Rule or executive instructions. This method is no doubt used to compensate and impose damages on nations but we cannot apply this method while imposing damages on a person who violates the EC. We may also add that the calculation made by the original applicant in his affidavit dated 18.05.2016 filed before the NGT are based on assumptions some of which we have not found to be correct namely - (1) use of ground water; (2) reduction of Cultural Centre space; (3) construction of basements etc..56. We may make it clear that we are not laying down the law that damages cannot be assessed on the basis of Carbon Footprint. In a case where expert evidence in this behalf is led or on the basis of empirical data it is established that by applying the principles of Carbon Footprint damages can be assessed, the Court may, in the facts and circumstances of the case, rely upon such data but, in the present case, there is no such reliable material.57. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5% of the project cost as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has maneuvered and manipulated officials and authorities. Instead of 12 buildings, he has constructed 18; from 552 flats the number of flats has gone upto 807 and now two more buildings having 454 flats are proposed. The project proponent contends that he has made smaller flats and, therefore, the number of flats has increased. He could not have done this without getting fresh EC. With the increase in the number of flats the number of persons, residing therein is bound to increase. This will impact the amount of water requirement, the amount of parking space, the amount of open area etc.. Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs. 100 crores or 10% of the project cost whichever is more. We also make it clear that while calculating the project cost the entire cost of the land based on the circle rate of the area in the year 2014 shall be added. The cost of construction shall be calculated on the basis of the Schedule of rates approved by the Public Works Department (PWD) of the State of Maharashtra for the year 2014. In case the PWD of Maharashtra has not approved any such rates then the Central Public Works Department rates for similar construction shall be applicable. We have fixed the base year as 2014 since the original EC expired in 2014 and most of the illegal construction took place after 2014. In addition thereto, if the project proponent has taken advantage of Transfer of Development Rights (for short TDR) with reference to this project or is entitled to any TDR, the benefit of the same shall be forfeited and if he has already taken the benefit then the same shall either be recovered from him or be adjusted against its future projects. The project proponent shall also pay a sum of Rs. 5 crores as damages, in addition to the above for contravening mandatory provisions of environmental laws. | 1[ds]We say this because as held by us above, there is no ambiguity with regard to the definition ofeven under the notification of 2006 and it covers all constructed area not open to the sky. The notification of 2011 only provides that theor covered areahe area of all floors put together including basement(s)ce areas. We may againthat this definition also is in consonance with the concept of grant of EC for construction as explained above and it is obvious that the concept of FSI orarea is alien to environmental laws.8. Without going into this aspectr, we are clearlyew that such an office memorandum could not and should not have been issued. The notification dated 14.09.2006 is a statutory notification issuedin terms ofnt (Protection) Rules, 1986 which provides that before such a notification is issued the Central Government has to give notice of its intention of issuing a notification and objections to the same are invited. No doubt the Central Government is empowered in public interest to dispense with the requirement of notice but this obviously has to be done in exceptional cases. The notification dated 14.09.2006 was issued by the Central Government and published in the gazette after inviting objections from the public. The first clarification with regard to this notification was issuedto which we have adverted above. These two decisionsthe Central Governmentwhich were notified as per the provisions of law could not have been set at naught by the Joint Director even if it was issued with the approval of a higher authority. We areew that since such decision has not been notified in the gazette the statutory notification dated 14.09.2006 and its subsequent clarification dated 04.04.2011 could not have been virtually set aside by this office memorandum.19. We are alsoew that the so called office memorandum is not at all clarificatory in nature. As held by us above the notification of 2006 with regard towas absolutely clear and needed no clarification. We fail to understand how the concept ofas understood in the buildingor DCR could be introduced into the notification of 2006 by this office memorandum which virtually made the notification of 2006 totally redundant. Therefore, we quash the office memorandum dated 07.07.2017.20. This is not the first time that we have noticed such clarificatory communications being issued by the officialsthe Ministry ofEnvironment, Forest and Climatewhich virtually have the effect of nullifying the statutorys. We have adverted to somee communications in our judgment in Common CauseUnion of India. We expect the officialsthe Ministry ofEnvironment, Forest and Climateto take a stand which prevents the environment and ecology from being damaged, rather than issuing clarifications which actually help the project proponents to flout the law and harm the environment.21. In viewe, we are clearlyew that the EC granted to the project proponent on 04.04.2008 was for constructing a totalof 57,658.42 sq.mtrs. and this would include all covered construction not open to the sky. No artificial division on the basis of FSI andarea can be made. Therefore, the NGT was fully justified in coming to the conclusion that the construction raised by the project proponent was in total violationthe EC granted to7) 9 SCC 499 Environmental Clearance dated 20.11.201722. The project proponent has drawn our attention to the EC for expansionthe project in questiongranted to it by the State Level Environment Impact Assessment Authority (SEIAA) on 20.11.2017. We may note that this clearance indicates that the existing construction comprises of 73815 shops which have been completed, 692 shops which are under construction, meaning thereby that 80717 shops are already in existence and in addition thereto 454 moreal centre are sought to be constructed. This will take the total number of flats to 1261 and number of shops to 117. We may also notice that the SEIAA has laid down general conditions forphase and the first condition is as followsThis environmental clearance (EC) is issued for totalarea of 147219.452 as approved by local planning authority. It is noted that the total proposed construction area is 147219.45 m2 which includes the area of previous EC (dated 04.04.2008) 57,658.42 m2 and the proposed expansion area of 89,561.03 sq.m. However the abovesq.m. is notional as the NON FSI area componentus EC is not included in 1,47,219.45 m2. After considering the NON FSI areaus EC the totales 1,81,230.94 m. SEIAA has also taken noteon issued by MOEF and CC vide office memorandumth July,stating the definition ofll be assessed as per the buildingof thelocal authorities in theaforementioned condition itself clearly shows that thearea constructed by the project proponent under first EChas not been taken into consideration. The project proponent has raised construction in Plot No. 1 of an FSI area measuring 48,424.66 sq. mtrs., andarea measuring 46,088.47 sq. mtrs.. Therefore, the total construction raised in Plot No. 1 is 94,513.13 sq. mtrs.. In Plot No. 2 the construction raised on an FSI area is 630.55 sq. mtrs. and on thearea is 4,858.57 sq. mtrs. and, therefore, the total construction already raised in Plot No. 2 is 5,489.12 sq. mtrs.. The total construction raised by the project proponent is 1,00,002.25 sq. mtrs. against theThis could not have been ignored by the SEIAA.23. In case the total construction raised by the project proponent is taken as 1,00,002.25 sq. mtrs. and if the areaed construction is added then the project will fall in B1 category and, therefore, the SEIAA had no authority to grant EC by treating the project as falling under Category B2. Furthermore, the ECis also illegal as the same has been granted on the presumptionthe order dated 31.05.2016passed by the Principal Secretary, Environment Department, State of Maharashtra holding that the construction of 18 buildings instead of 12 buildings is permissible. The EC completely lost sightthe fact thatthe order dated 31.05.2016was quashed and set aside by the NGT in its order dated 27.09.2016. We may note that the official who passed the order on 31.05.2016 was the same official, who held the office of Member Secretary of SEIAA, which granted environmental clearance on 20.11.2017. Therefore, the EC dated 20.11.2017 was beyond the authority of SEIAA and was granted under a totally false assumption and the same is therefore quashed and set aside.Allegations made bythe original applicantagainst various officials24. The NGT in its order dated 27.09.2016, has found that there was suppression of facts by theC. The NGT also directed the Chief Secretary to the State of Maharashtra to take noticers who were misleading the Department of Environment. Costs were imposed on the PMC, Department of Environment and the SEIAA. This has been challenged before us by the PMC.25. The original applicant both in his original application filed before the NGT and in appeal filed before us as well as in other proceedings has made serious allegations against individual officersMC as well as the SEIAA and specially the Principal Secretary, Environment Department, Govt. of Maharashtra. However, for reasons best known tothe original applicantse individuals has been made a party in personal capacity in these proceedings. The law is well settled that no person can be condemned unheard. It would, therefore, not be fair on our part, to deal with allegations made against individuals who are not parties to the petition and who have had no chance to reply to the allegations levelled against them. Therefore, we refrain from commenting on the conductls in their individual capacity.26. However, as far as their official capacity is concerned, we areew that the NGT was fully justified in coming to the conclusion that certain officials of PMC were going outr way to help the project proponent and we, therefore, uphold the directions given by the NGT in its order dated 27.09.2016 in this regard. In view of what we have discussed above, it is more than apparent that despite notifications of 2006 and 2011 being clear and unambiguous, the officials of PMC have given an interpretation which wasto suit the project proponent. This was being done even before the clarification of 07.07.2017 was issued. This clearly indicates that some officialsMC were espousing the casethe project proponentat the cost7. We may also observe that prima facie we areew that the Principal Secretary, Environment Department, Govt. of Maharashtra has not acted in a fair and transparent manner. The allegations made bythe original applicantcannot be lightly brushed aside. In the original order dated 27.09.2016, the NGT held as followsFrom the extracted portionthe order dated 31st May, 2016 of Principal Secretary, Environment Department, it is seen that he has declared construction of 18 buildings on the site instead of 12 buildings is permissible which, according to him, only a changes on configuration of buildings. This opinion undoubtedly is based on his erroneous conclusion that total BUA which is nothing but F.S.I. consumed i.e. 48617.14which is within the EC limit as against the actual construction activity which has exceeded over 100000 sq.mtrs BUA. Hence we set aside that order/communication dated 31he official holding the post of Principal Secretary must have been awaree directions because he was a party to the proceedings before the NGT. Despite that, while granting fresh EC on 20.11.2017, this official noticed that reference to the Environment Department for verification of files was withdrawn vide letter | 1 | 11,861 | 1,664 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
the original applicant has also challenged the original order of the NGT. While assessing the damages we may note certain facts:1) The EC was granted on 04.04.2008 but construction commenced after issuance of consent to establish dated 20.06.2009 and the EC would be valid for a period of 5 years from the date of such consent, i.e. upto 19.06.2014;2) The EC dated 04.04.2008 was granted for construction of built up area 57,658.42 sq.mtrs., whereas admittedly, as of now the constructed built up area is 1,00,002.25 sq. mtrs.. Therefore, there is clear-cut violation of the terms of the EC;3) Any construction raised after 19.06.2014 is without any EC especially since we have held that EC granted on 20.11.2017 is invalid.Carbon Footprint:52. The main case of the original applicant is that the damages should be assessed on a scientific basis by calculating the damage caused to the environment by the project proponent on the basis of Carbon Footprint. In the absence of detailed submissions, we find ourselves totally unequipped to go into this aspect of the matter.53. In the original application filed by the original applicant before the NGT, there is no reference to Carbon Footprint. Even when evidence was initially led, no reference was made to the same. The concept of Carbon Footprint was introduced by the original applicant only in his affidavit dated 18.05.2016. In fact, according to the project proponent this affidavit was not even filed on 18.05.2016. It appears to us that there is no order of the NGT specifically permitting the original applicant to file such an affidavit. The submission of original applicant is that he was orally permitted to file the same. These disputed questions would have been only decided by the Original Bench and, therefore, we have already set aside the order passed in the review application dated 08.01.2018.54. Courts cannot introduce a new concept of assessing and levying damages unless expert evidence in this behalf is led or there are some well established principles. We find that no such principles have been accepted or established in the present case. When there are no pleadings in this regard we fail to understand how the concept of Carbon Footprint can be introduced after evidence has been closed, at the stage of arguments. We cannot assess the impact in actual terms and, therefore, we can only impose damages or costs on principles which have been well settled by law.55. We may also note that the method to which the original applicant referred to is not part of any law, Rule or executive instructions. This method is no doubt used to compensate and impose damages on nations but we cannot apply this method while imposing damages on a person who violates the EC. We may also add that the calculation made by the original applicant in his affidavit dated 18.05.2016 filed before the NGT are based on assumptions some of which we have not found to be correct namely - (1) use of ground water; (2) reduction of Cultural Centre space; (3) construction of basements etc..56. We may make it clear that we are not laying down the law that damages cannot be assessed on the basis of Carbon Footprint. In a case where expert evidence in this behalf is led or on the basis of empirical data it is established that by applying the principles of Carbon Footprint damages can be assessed, the Court may, in the facts and circumstances of the case, rely upon such data but, in the present case, there is no such reliable material.57. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5% of the project cost as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has maneuvered and manipulated officials and authorities. Instead of 12 buildings, he has constructed 18; from 552 flats the number of flats has gone upto 807 and now two more buildings having 454 flats are proposed. The project proponent contends that he has made smaller flats and, therefore, the number of flats has increased. He could not have done this without getting fresh EC. With the increase in the number of flats the number of persons, residing therein is bound to increase. This will impact the amount of water requirement, the amount of parking space, the amount of open area etc.. Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs. 100 crores or 10% of the project cost whichever is more. We also make it clear that while calculating the project cost the entire cost of the land based on the circle rate of the area in the year 2014 shall be added. The cost of construction shall be calculated on the basis of the Schedule of rates approved by the Public Works Department (PWD) of the State of Maharashtra for the year 2014. In case the PWD of Maharashtra has not approved any such rates then the Central Public Works Department rates for similar construction shall be applicable. We have fixed the base year as 2014 since the original EC expired in 2014 and most of the illegal construction took place after 2014. In addition thereto, if the project proponent has taken advantage of Transfer of Development Rights (for short TDR) with reference to this project or is entitled to any TDR, the benefit of the same shall be forfeited and if he has already taken the benefit then the same shall either be recovered from him or be adjusted against its future projects. The project proponent shall also pay a sum of Rs. 5 crores as damages, in addition to the above for contravening mandatory provisions of environmental laws.
### Response:
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### Explanation:
SCC 499 Environmental Clearance dated 20.11.201722. The project proponent has drawn our attention to the EC for expansionthe project in questiongranted to it by the State Level Environment Impact Assessment Authority (SEIAA) on 20.11.2017. We may note that this clearance indicates that the existing construction comprises of 73815 shops which have been completed, 692 shops which are under construction, meaning thereby that 80717 shops are already in existence and in addition thereto 454 moreal centre are sought to be constructed. This will take the total number of flats to 1261 and number of shops to 117. We may also notice that the SEIAA has laid down general conditions forphase and the first condition is as followsThis environmental clearance (EC) is issued for totalarea of 147219.452 as approved by local planning authority. It is noted that the total proposed construction area is 147219.45 m2 which includes the area of previous EC (dated 04.04.2008) 57,658.42 m2 and the proposed expansion area of 89,561.03 sq.m. However the abovesq.m. is notional as the NON FSI area componentus EC is not included in 1,47,219.45 m2. After considering the NON FSI areaus EC the totales 1,81,230.94 m. SEIAA has also taken noteon issued by MOEF and CC vide office memorandumth July,stating the definition ofll be assessed as per the buildingof thelocal authorities in theaforementioned condition itself clearly shows that thearea constructed by the project proponent under first EChas not been taken into consideration. The project proponent has raised construction in Plot No. 1 of an FSI area measuring 48,424.66 sq. mtrs., andarea measuring 46,088.47 sq. mtrs.. Therefore, the total construction raised in Plot No. 1 is 94,513.13 sq. mtrs.. In Plot No. 2 the construction raised on an FSI area is 630.55 sq. mtrs. and on thearea is 4,858.57 sq. mtrs. and, therefore, the total construction already raised in Plot No. 2 is 5,489.12 sq. mtrs.. The total construction raised by the project proponent is 1,00,002.25 sq. mtrs. against theThis could not have been ignored by the SEIAA.23. In case the total construction raised by the project proponent is taken as 1,00,002.25 sq. mtrs. and if the areaed construction is added then the project will fall in B1 category and, therefore, the SEIAA had no authority to grant EC by treating the project as falling under Category B2. Furthermore, the ECis also illegal as the same has been granted on the presumptionthe order dated 31.05.2016passed by the Principal Secretary, Environment Department, State of Maharashtra holding that the construction of 18 buildings instead of 12 buildings is permissible. The EC completely lost sightthe fact thatthe order dated 31.05.2016was quashed and set aside by the NGT in its order dated 27.09.2016. We may note that the official who passed the order on 31.05.2016 was the same official, who held the office of Member Secretary of SEIAA, which granted environmental clearance on 20.11.2017. Therefore, the EC dated 20.11.2017 was beyond the authority of SEIAA and was granted under a totally false assumption and the same is therefore quashed and set aside.Allegations made bythe original applicantagainst various officials24. The NGT in its order dated 27.09.2016, has found that there was suppression of facts by theC. The NGT also directed the Chief Secretary to the State of Maharashtra to take noticers who were misleading the Department of Environment. Costs were imposed on the PMC, Department of Environment and the SEIAA. This has been challenged before us by the PMC.25. The original applicant both in his original application filed before the NGT and in appeal filed before us as well as in other proceedings has made serious allegations against individual officersMC as well as the SEIAA and specially the Principal Secretary, Environment Department, Govt. of Maharashtra. However, for reasons best known tothe original applicantse individuals has been made a party in personal capacity in these proceedings. The law is well settled that no person can be condemned unheard. It would, therefore, not be fair on our part, to deal with allegations made against individuals who are not parties to the petition and who have had no chance to reply to the allegations levelled against them. Therefore, we refrain from commenting on the conductls in their individual capacity.26. However, as far as their official capacity is concerned, we areew that the NGT was fully justified in coming to the conclusion that certain officials of PMC were going outr way to help the project proponent and we, therefore, uphold the directions given by the NGT in its order dated 27.09.2016 in this regard. In view of what we have discussed above, it is more than apparent that despite notifications of 2006 and 2011 being clear and unambiguous, the officials of PMC have given an interpretation which wasto suit the project proponent. This was being done even before the clarification of 07.07.2017 was issued. This clearly indicates that some officialsMC were espousing the casethe project proponentat the cost7. We may also observe that prima facie we areew that the Principal Secretary, Environment Department, Govt. of Maharashtra has not acted in a fair and transparent manner. The allegations made bythe original applicantcannot be lightly brushed aside. In the original order dated 27.09.2016, the NGT held as followsFrom the extracted portionthe order dated 31st May, 2016 of Principal Secretary, Environment Department, it is seen that he has declared construction of 18 buildings on the site instead of 12 buildings is permissible which, according to him, only a changes on configuration of buildings. This opinion undoubtedly is based on his erroneous conclusion that total BUA which is nothing but F.S.I. consumed i.e. 48617.14which is within the EC limit as against the actual construction activity which has exceeded over 100000 sq.mtrs BUA. Hence we set aside that order/communication dated 31he official holding the post of Principal Secretary must have been awaree directions because he was a party to the proceedings before the NGT. Despite that, while granting fresh EC on 20.11.2017, this official noticed that reference to the Environment Department for verification of files was withdrawn vide letter
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Ponnammal Vs. R. Srinivasarangan & Others | She was therefore free to go back upon it any to time she chose. But she was the weaker party. At that point of time the 1st defendant was in a position of advantage. As certain alienations made by the limited owner in possession had to be negotiated for and settled to the satisfaction of the 1st defendant and Padmasani and her children, there was a delay of a few months.If the 1st defendant had not been pinned down to some document, there was the danger of his backing out of his promise to share the inheritance with Padmasani and her sons. The document certainly achieved that objective. But it could not be said to have been a final and concluded bargain.During the interval of bout eight months that elapsed between the drawing up of Ex. P-1 and Ex. D-1 it appears that Padmasani advisers realised that the terms of the original document, Ex. P-1 would be too onerous for Padmasani herself and not in the interest of the plaintiff and other members of the family in view of the involved financial circumstances of the family.It had been decided that the mother would figure as the guardian of her minor sons and not the father, who under the law would be the preferential guardian. The reason was that the legal advisers thought it advisable to keep the properties out of the hands of the plaintiffs father who, as found by both the Courts below, was fully cognizant of the entire negotiations and the terms which were ultimately given effect to.But it was further realized that Padmasani would require funds for meeting the expenses of maintaining and educating her children and giving her daughter in marriage. If she was mere guardian of her minor children, she would naturally face greater difficulties in raising funds for those purposes than if she were vested with the character of a full owner in respect of the moiety of the property agreed to be conveyed by the 1st defendant.The High Court lost sight of the fact that by the revised terms the 1st defendant did not make any gain at all, the only modification being that the properties agreed to be conveyed by him to Padmasani and her sons were divided into two parts in one of which Padmasani was given an absolute right. It was not done to aggrandize her at the cost of her minor sons but in their own interest and in the interest of the rest of the family.It was in those circumstances that the terms as originally proposed in Ex. P-1 were revised and took their final shape in Ex, D-1. It must therefore be held that Ex. P-1 was not, as the High Court erroneously assumed, a final agreement between the parties. The final agreement was as laid down in Ex. D-1. At the time the document was executed and registered, in view of the law as it then was understood as laid down by the Division Bench of the High Court, the 1st defendant was the true owner.Hence there could be no. question of sacrificing the interest of the minors for the benefit of their parents as distinct from that of the children themselves. The 1st defendant had agreed to part with a portion of the inheritance from the propositus not only to benefit the minors alone but also Padmasani. Padmasani apparently acting under the advice of her husband and of their friends and relations, particularly their lawyers aforesaid, agreed to the final terms as contained in Ex D-1, not with any sordid motive of benefiting herself at the expense of her sons but in the interest of the family as a whole.Neither was the 1st defendant interested in advancing the cause of Padmasani at the expense of her sons. It is not correct, therefore, to suggest that any one, far less the parents of the minors, were acting against the latters interest. The minors parents were immediately faced with the difficult problem of finding ways and means of maintaining the family, educating the children and giving the daughter in marriage. Those were matters in which everyone of them singly and collectively was equally interested.The High Court, therefore, in our opinion misled itself into thinking that the interest of the minor had been sacrificed for the sake of the parents or one of them. The arrangement as finally incorporated in Ex. D-1 was conceived in the interest of the entire family of Padmasani and her husband and carried out under the advice of competent legal advisers who were not particularly interested in any one of the family as against the others.As already indicated, that was not the basis of the claim as laid in the plaint. The plaint read as a whole assailed the arrangement on grounds which have completely failed in both the courts below.12. But it was argued by the learned counsel for the plaintiffs-respondents that in so far as Padmasani was vested with absolute powers in respect of the property given to her she was not acting in the interest of the estate of the minors and was, therefore, not representing them in that transaction, that she had no. right to part with a portion of the properties for the payment of her husbands debts, that her powers were not co-extensive with the powers of a daughters inheriting her fathers property and that in law she had no. right to alienate any portion of the properties.These are arguments which are wholly irrelevant to the present controversy and proceed on the assumption that the compromise should have been made on the basis of the law as laid down by the Full Bench in January 1937. We have already held that the binding character of the transaction evidenced by Ex. D-1 had to be judged with reference to the state of affairs as it was at about the date of that transaction and not with reference to what the law was interpreted to be three years later. | 1[ds]That is the law in India also as laid down in innumerable decisions. Applying the test laid down in the dictum quoted above to the facts of the present case, it is manifest, as held by the trial Court, that on the date of Ex.the 1st defendant was considered by competent lawyers to have been lawfully in possession of the property left by the propositus. Padmasani and her people were naturally disappointed and sought avenues of obtaining even a portion of the properties, desperately situated as they were.The financial condition of Padmasanis family can best be described in their own words contained in a sale deed (Ex.dated the 23rd January 1939, to which Padmasani and the two plaintiffs of whom the first one had attained majority by then werethere is clear and cogent evidence of the fact that Padmasani, her husband and his family were in dire need of funds for maintaining the family, for educating the children and for meeting the marriage expenses of thewas the possibility of Padmasani and ultimately her sons getting the entire estate left by her brother, but that possibility was hedged round by a number of adverse circumstances. The 1st defendant had already taken possession of the estate and a litigation would have to be launched by Padmasani. Neither she nor her husband was in a position to finance that litigation .Furthermore, they would have to run the risk of litigation with all its uncertainties especially in view of the recent Bench decision of the High Court, Keeping in view the circumstances in which Padmasani and her family found themselves, they naturally appealed to the feelings of love and affection of the 1st defendant for his deceased brothers daughter and daughters sons through the unselfish efforts of the lawyers named above who were both competent and willing to render their services to mediate between them and the 1st defendant.There cannot, therefore, be the least doubt that there was a genuine dispute between the parties which was sought by disinterested friends and relations to be settled by making the parties agree to give andhas been held by the High Court and it has been vehemently pressed before us by the learned counsel for the respondents that the arrangement thus arrived at was a device to vent Padmasani with absolute right in respect of about half the properties in which she could not have claimed anything more than the interest of a limited owner. That would be so, firstly on the supposition that the 1st defendant was a trespasser and secondly, on the supposition that Ex.represented a concluded bargain. That is not so.11. It is noteworthy that there is not a whisper in the plaint about the terms of ExIt was for the first time in the High Court that the contention was seriously raised that with reference to the terms of Ex.those in Ex.were far too onerous to the plaintiffs. As already indicated the plaint proceeded on the basis that Ex.represented the final bargain between the partiesa bargain which was vitiated by undue influence, coercion and deception.That case, though laid in the plaint completely failed for want of evidence in support thereof. The High Court failed to realise that the true situation was that the astute lawyers advising Padmasani and her husband were in a hurry to bind the 1st defendant by making him subscribe to a document drawn up by them. Hence they got the 1st defendant to sign Ex.which on the fact of it was of a tentative character.The other party to the transaction had not subscribed to it and the deed had not been delivered to her. She was therefore free to go back upon it any to time she chose. But she was the weaker party. At that point of time the 1st defendant was in a position of advantage. As certain alienations made by the limited owner in possession had to be negotiated for and settled to the satisfaction of the 1st defendant and Padmasani and her children, there was a delay of a few months.If the 1st defendant had not been pinned down to some document, there was the danger of his backing out of his promise to share the inheritance with Padmasani and her sons. The document certainly achieved that objective. But it could not be said to have been a final and concluded bargain.During the interval of bout eight months that elapsed between the drawing up of Ex.1 it appears that Padmasani advisers realised that the terms of the original document, Ex.would be too onerous for Padmasani herself and not in the interest of the plaintiff and other members of the family in view of the involved financial circumstances of the family.It had been decided that the mother would figure as the guardian of her minor sons and not the father, who under the law would be the preferential guardian. The reason was that the legal advisers thought it advisable to keep the properties out of the hands of the plaintiffs father who, as found by both the Courts below, was fully cognizant of the entire negotiations and the terms which were ultimately given effect to.But it was further realized that Padmasani would require funds for meeting the expenses of maintaining and educating her children and giving her daughter in marriage. If she was mere guardian of her minor children, she would naturally face greater difficulties in raising funds for those purposes than if she were vested with the character of a full owner in respect of the moiety of the property agreed to be conveyed by the 1st defendant.The High Court lost sight of the fact that by the revised terms the 1st defendant did not make any gain at all, the only modification being that the properties agreed to be conveyed by him to Padmasani and her sons were divided into two parts in one of which Padmasani was given an absolute right. It was not done to aggrandize her at the cost of her minor sons but in their own interest and in the interest of the rest of the family.It was in those circumstances that the terms as originally proposed in Ex.were revised and took their final shape in Ex,It must therefore be held that Ex.was not, as the High Court erroneously assumed, a final agreement between the parties. The final agreement was as laid down in Ex.At the time the document was executed and registered, in view of the law as it then was understood as laid down by the Division Bench of the High Court, the 1st defendant was the true owner.Hence there could be no. question of sacrificing the interest of the minors for the benefit of their parents as distinct from that of the children themselves. The 1st defendant had agreed to part with a portion of the inheritance from the propositus not only to benefit the minors alone but also Padmasani. Padmasani apparently acting under the advice of her husband and of their friends and relations, particularly their lawyers aforesaid, agreed to the final terms as contained in Exnot with any sordid motive of benefiting herself at the expense of her sons but in the interest of the family as a whole.Neither was the 1st defendant interested in advancing the cause of Padmasani at the expense of her sons. It is not correct, therefore, to suggest that any one, far less the parents of the minors, were acting against the latters interest. The minors parents were immediately faced with the difficult problem of finding ways and means of maintaining the family, educating the children and giving the daughter in marriage. Those were matters in which everyone of them singly and collectively was equally interested.The High Court, therefore, in our opinion misled itself into thinking that the interest of the minor had been sacrificed for the sake of the parents or one of them. The arrangement as finally incorporated in Ex.was conceived in the interest of the entire family of Padmasani and her husband and carried out under the advice of competent legal advisers who were not particularly interested in any one of the family as against the others.As already indicated, that was not the basis of the claim as laid in the plaint. The plaint read as a whole assailed the arrangement on grounds which have completely failed in both the courtsare arguments which are wholly irrelevant to the present controversy and proceed on the assumption that the compromise should have been made on the basis of the law as laid down by the Full Bench in January 1937. We have already held that the binding character of the transaction evidenced by Ex.had to be judged with reference to the state of affairs as it was at about the date of that transaction and not with reference to what the law was interpreted to be three years later. | 1 | 5,097 | 1,557 | ### 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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She was therefore free to go back upon it any to time she chose. But she was the weaker party. At that point of time the 1st defendant was in a position of advantage. As certain alienations made by the limited owner in possession had to be negotiated for and settled to the satisfaction of the 1st defendant and Padmasani and her children, there was a delay of a few months.If the 1st defendant had not been pinned down to some document, there was the danger of his backing out of his promise to share the inheritance with Padmasani and her sons. The document certainly achieved that objective. But it could not be said to have been a final and concluded bargain.During the interval of bout eight months that elapsed between the drawing up of Ex. P-1 and Ex. D-1 it appears that Padmasani advisers realised that the terms of the original document, Ex. P-1 would be too onerous for Padmasani herself and not in the interest of the plaintiff and other members of the family in view of the involved financial circumstances of the family.It had been decided that the mother would figure as the guardian of her minor sons and not the father, who under the law would be the preferential guardian. The reason was that the legal advisers thought it advisable to keep the properties out of the hands of the plaintiffs father who, as found by both the Courts below, was fully cognizant of the entire negotiations and the terms which were ultimately given effect to.But it was further realized that Padmasani would require funds for meeting the expenses of maintaining and educating her children and giving her daughter in marriage. If she was mere guardian of her minor children, she would naturally face greater difficulties in raising funds for those purposes than if she were vested with the character of a full owner in respect of the moiety of the property agreed to be conveyed by the 1st defendant.The High Court lost sight of the fact that by the revised terms the 1st defendant did not make any gain at all, the only modification being that the properties agreed to be conveyed by him to Padmasani and her sons were divided into two parts in one of which Padmasani was given an absolute right. It was not done to aggrandize her at the cost of her minor sons but in their own interest and in the interest of the rest of the family.It was in those circumstances that the terms as originally proposed in Ex. P-1 were revised and took their final shape in Ex, D-1. It must therefore be held that Ex. P-1 was not, as the High Court erroneously assumed, a final agreement between the parties. The final agreement was as laid down in Ex. D-1. At the time the document was executed and registered, in view of the law as it then was understood as laid down by the Division Bench of the High Court, the 1st defendant was the true owner.Hence there could be no. question of sacrificing the interest of the minors for the benefit of their parents as distinct from that of the children themselves. The 1st defendant had agreed to part with a portion of the inheritance from the propositus not only to benefit the minors alone but also Padmasani. Padmasani apparently acting under the advice of her husband and of their friends and relations, particularly their lawyers aforesaid, agreed to the final terms as contained in Ex D-1, not with any sordid motive of benefiting herself at the expense of her sons but in the interest of the family as a whole.Neither was the 1st defendant interested in advancing the cause of Padmasani at the expense of her sons. It is not correct, therefore, to suggest that any one, far less the parents of the minors, were acting against the latters interest. The minors parents were immediately faced with the difficult problem of finding ways and means of maintaining the family, educating the children and giving the daughter in marriage. Those were matters in which everyone of them singly and collectively was equally interested.The High Court, therefore, in our opinion misled itself into thinking that the interest of the minor had been sacrificed for the sake of the parents or one of them. The arrangement as finally incorporated in Ex. D-1 was conceived in the interest of the entire family of Padmasani and her husband and carried out under the advice of competent legal advisers who were not particularly interested in any one of the family as against the others.As already indicated, that was not the basis of the claim as laid in the plaint. The plaint read as a whole assailed the arrangement on grounds which have completely failed in both the courts below.12. But it was argued by the learned counsel for the plaintiffs-respondents that in so far as Padmasani was vested with absolute powers in respect of the property given to her she was not acting in the interest of the estate of the minors and was, therefore, not representing them in that transaction, that she had no. right to part with a portion of the properties for the payment of her husbands debts, that her powers were not co-extensive with the powers of a daughters inheriting her fathers property and that in law she had no. right to alienate any portion of the properties.These are arguments which are wholly irrelevant to the present controversy and proceed on the assumption that the compromise should have been made on the basis of the law as laid down by the Full Bench in January 1937. We have already held that the binding character of the transaction evidenced by Ex. D-1 had to be judged with reference to the state of affairs as it was at about the date of that transaction and not with reference to what the law was interpreted to be three years later.
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### Explanation:
too onerous to the plaintiffs. As already indicated the plaint proceeded on the basis that Ex.represented the final bargain between the partiesa bargain which was vitiated by undue influence, coercion and deception.That case, though laid in the plaint completely failed for want of evidence in support thereof. The High Court failed to realise that the true situation was that the astute lawyers advising Padmasani and her husband were in a hurry to bind the 1st defendant by making him subscribe to a document drawn up by them. Hence they got the 1st defendant to sign Ex.which on the fact of it was of a tentative character.The other party to the transaction had not subscribed to it and the deed had not been delivered to her. She was therefore free to go back upon it any to time she chose. But she was the weaker party. At that point of time the 1st defendant was in a position of advantage. As certain alienations made by the limited owner in possession had to be negotiated for and settled to the satisfaction of the 1st defendant and Padmasani and her children, there was a delay of a few months.If the 1st defendant had not been pinned down to some document, there was the danger of his backing out of his promise to share the inheritance with Padmasani and her sons. The document certainly achieved that objective. But it could not be said to have been a final and concluded bargain.During the interval of bout eight months that elapsed between the drawing up of Ex.1 it appears that Padmasani advisers realised that the terms of the original document, Ex.would be too onerous for Padmasani herself and not in the interest of the plaintiff and other members of the family in view of the involved financial circumstances of the family.It had been decided that the mother would figure as the guardian of her minor sons and not the father, who under the law would be the preferential guardian. The reason was that the legal advisers thought it advisable to keep the properties out of the hands of the plaintiffs father who, as found by both the Courts below, was fully cognizant of the entire negotiations and the terms which were ultimately given effect to.But it was further realized that Padmasani would require funds for meeting the expenses of maintaining and educating her children and giving her daughter in marriage. If she was mere guardian of her minor children, she would naturally face greater difficulties in raising funds for those purposes than if she were vested with the character of a full owner in respect of the moiety of the property agreed to be conveyed by the 1st defendant.The High Court lost sight of the fact that by the revised terms the 1st defendant did not make any gain at all, the only modification being that the properties agreed to be conveyed by him to Padmasani and her sons were divided into two parts in one of which Padmasani was given an absolute right. It was not done to aggrandize her at the cost of her minor sons but in their own interest and in the interest of the rest of the family.It was in those circumstances that the terms as originally proposed in Ex.were revised and took their final shape in Ex,It must therefore be held that Ex.was not, as the High Court erroneously assumed, a final agreement between the parties. The final agreement was as laid down in Ex.At the time the document was executed and registered, in view of the law as it then was understood as laid down by the Division Bench of the High Court, the 1st defendant was the true owner.Hence there could be no. question of sacrificing the interest of the minors for the benefit of their parents as distinct from that of the children themselves. The 1st defendant had agreed to part with a portion of the inheritance from the propositus not only to benefit the minors alone but also Padmasani. Padmasani apparently acting under the advice of her husband and of their friends and relations, particularly their lawyers aforesaid, agreed to the final terms as contained in Exnot with any sordid motive of benefiting herself at the expense of her sons but in the interest of the family as a whole.Neither was the 1st defendant interested in advancing the cause of Padmasani at the expense of her sons. It is not correct, therefore, to suggest that any one, far less the parents of the minors, were acting against the latters interest. The minors parents were immediately faced with the difficult problem of finding ways and means of maintaining the family, educating the children and giving the daughter in marriage. Those were matters in which everyone of them singly and collectively was equally interested.The High Court, therefore, in our opinion misled itself into thinking that the interest of the minor had been sacrificed for the sake of the parents or one of them. The arrangement as finally incorporated in Ex.was conceived in the interest of the entire family of Padmasani and her husband and carried out under the advice of competent legal advisers who were not particularly interested in any one of the family as against the others.As already indicated, that was not the basis of the claim as laid in the plaint. The plaint read as a whole assailed the arrangement on grounds which have completely failed in both the courtsare arguments which are wholly irrelevant to the present controversy and proceed on the assumption that the compromise should have been made on the basis of the law as laid down by the Full Bench in January 1937. We have already held that the binding character of the transaction evidenced by Ex.had to be judged with reference to the state of affairs as it was at about the date of that transaction and not with reference to what the law was interpreted to be three years later.
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M/S DYNA TECHNOLOGIES PVT.LTD Vs. M/S CROMPTON GREAVES LTD | Coming to the last aspect concerning the challenge on adequacy of reasons, the Court while exercising jurisdiction under Section 34 has to adjudicate the validity of such an award based on the degree of particularity of reasoning required having regard to the nature of issues falling for consideration. The degree of particularity cannot be stated in a precise manner as the same would depend on the complexity of the issue. Even if the Court comes to a conclusion that there were gaps in the reasoning for the conclusions reached by the Tribunal, the Court needs to have regard to the documents submitted by the parties and the contentions raised before the Tribunal so that awards with inadequate reasons are not set aside in casual and cavalier manner. On the other hand, ordinarily unintelligible awards are to be set aside, subject to party autonomy to do away with the reasoned award. Therefore, the courts are required to be careful while distinguishing between inadequacy of reasons in an award and unintelligible awards. 37. At this juncture it must be noted that the legislative intention of providing Section 34 (4) in the Arbitration Act was to make the award enforceable, after giving an opportunity to the Tribunal to undo the curable defects. This provision cannot be brushed aside and the High Court could not have proceeded further to determine the issue on merits. 38. In case of absence of reasoning the utility has been provided under of Section 34(4) of the Arbitration Act to cure such defects. When there is complete perversity in the reasoning then only it can be challenged under the provisions of Section 34 of the Arbitration Act. The power vested under Section 34 (4) of the Arbitration Act to cure defects can be utilized in cases where the arbitral award does not provide any reasoning or if the award has some gap in the reasoning or otherwise and that can be cured so as to avoid a challenge based on the aforesaid curable defects under Section 34 of the Arbitration Act. However, in this case such remand to the Tribunal would not be beneficial as this case has taken more than 25 years for its adjudication. It is in this state of affairs that we lament that the purpose of arbitration as an effective and expeditious forum itself stands effaced. 39. It may be noted that when the High Court concluded that there was no reasoned award, then the award ceased to exist and the Court was functus officio under Section 34 of the Arbitration Act for hearing the challenge to the award under the provisions of Section 34 and come to a conclusion that the arbitration award was not in terms of the agreement. In such case, the High Court ought to have considered remanding the matter to the Tribunal in the usual course. However, the High Court analyzed the case on merits, but, for different reasons and we need not go into the validity of High Courts interference. 40. Coming back to the award, we need to see whether the award of the Arbitral Tribunal can be sustained in the instant case. Although the Arbitral Tribunal has dealt with the claims separately under different sub-headings, the award is confusing and has jumbled the contentions, facts and reasoning, without appropriate distinction. The Tribunal rendered the award with narration of facts with references to the annexures wherever it relied upon by it. The Tribunal abruptly concluded at the end of the factual narration, without providing any reasons, in the following manner: (3) Claim for unproductive usage of machineries …. (g) All the above facts clearly establish that the machineries deployed by the Claimant had to do unproductive work by shifting from one place to another to suit the availability of work.The contract contemplates only payment for actual turnover of earthwork and for this they had received amount totaling to Rs. 1709782.88. The Claimant claims that the hire charges paid to the machineries, men and engineers should be reimbursed to him. He has given the actual expenses in his claim statement. (emphasis supplied) 41. Interestingly, the factual narration is coupled with the claimants argument, which is bundled together. A close reading of the same is required to separate the same wherein the Arbitral Tribunal has mixed the arguments with the premise it intended to rely upon for the claimants claim. Further, it has reduced the reasons for respondents defense. In spite of our independent application of mind based on the documents relied upon, but cannot sustain the award in its existing form as there is a requirement of legal reasoning to supplement such conclusion. In this context, the complexity of the subject matter stops us from supplementing such legal reasoning and we cannot sustain the aforesaid award as being reasoned. 42. It may be beneficial to reduce the concluding paragraph of the award, which reads as under: 3.4. The above arguments and various authorities quoted by them have been studied by the Tribunal and we are convinced that the compensation is payable on the hire charges and expenses incurred by the claimant based on the claims made by him in June 95 and now submitted by the claimant in his revised claim petition on 05.07.1997. We are convinced that the machineries have been actually mobilized from the letter R¬3, R¬8 and R-10 issued by DCM reporting on the number of machineries deployed by Claimant. The Claimants have produced the log books and bills for the various machineries and modified their claims. The tribunal had perused the log books and idle wages approved in C¬7 by Respondent and the claims made in R¬17. (emphasis supplied) 43. From the facts, we can only state that from a perusal of the award, in the facts and circumstances of the case, it has been rendered without reasons. However, the muddled and confused form of the award has invited the High Court to state that the arbitrator has merely restated the contentions of both parties. | 0[ds]36. When we consider the requirement of a reasoned order three characteristics of a reasoned order can be fathomed. They are: proper, intelligible and adequate. If the reasoning in the order are improper, they reveal a flaw in the decision¬making process. If the challenge to an award is based on impropriety or perversity in the reasoning, then it can be challenged strictly on the grounds provided under Section 34 of the Arbitration Act. If the challenge to an award is based on the ground that the same is unintelligible, the same would be equivalent of providing no reasons at all. Coming to the last aspect concerning the challenge on adequacy of reasons, the Court while exercising jurisdiction under Section 34 has to adjudicate the validity of such an award based on the degree of particularity of reasoning required having regard to the nature of issues falling for consideration. The degree of particularity cannot be stated in a precise manner as the same would depend on the complexity of the issue. Even if the Court comes to a conclusion that there were gaps in the reasoning for the conclusions reached by the Tribunal, the Court needs to have regard to the documents submitted by the parties and the contentions raised before the Tribunal so that awards with inadequate reasons are not set aside in casual and cavalier manner. On the other hand, ordinarily unintelligible awards are to be set aside, subject to party autonomy to do away with the reasoned award. Therefore, the courts are required to be careful while distinguishing between inadequacy of reasons in an award and unintelligible awards37. At this juncture it must be noted that the legislative intention of providing Section 34 (4) in the Arbitration Act was to make the award enforceable, after giving an opportunity to the Tribunal to undo the curable defects. This provision cannot be brushed aside and the High Court could not have proceeded further to determine the issue on merits38. In case of absence of reasoning the utility has been provided under of Section 34(4) of the Arbitration Act to cure such defects. When there is complete perversity in the reasoning then only it can be challenged under the provisions of Section 34 of the Arbitration Act. The power vested under Section 34 (4) of the Arbitration Act to cure defects can be utilized in cases where the arbitral award does not provide any reasoning or if the award has some gap in the reasoning or otherwise and that can be cured so as to avoid a challenge based on the aforesaid curable defects under Section 34 of the Arbitration Act. However, in this case such remand to the Tribunal would not be beneficial as this case has taken more than 25 years for its adjudication. It is in this state of affairs that we lament that the purpose of arbitration as an effective and expeditious forum itself stands effaced39. It may be noted that when the High Court concluded that there was no reasoned award, then the award ceased to exist and the Court was functus officio under Section 34 of the Arbitration Act for hearing the challenge to the award under the provisions of Section 34 and come to a conclusion that the arbitration award was not in terms of the agreement. In such case, the High Court ought to have considered remanding the matter to the Tribunal in the usual course. However, the High Court analyzed the case on merits, but, for different reasons and we need not go into the validity of High Courts interference40. Coming back to the award, we need to see whether the award of the Arbitral Tribunal can be sustained in the instant case. Although the Arbitral Tribunal has dealt with the claims separately under different sub-headings, the award is confusing and has jumbled the contentions, facts and reasoning, without appropriate distinction. The Tribunal rendered the award with narration of facts with references to the annexures wherever it relied upon by it. The Tribunal abruptly concluded at the end of the factual narration, without providing any reasons43. From the facts, we can only state that from a perusal of the award, in the facts and circumstances of the case, it has been rendered without reasons. However, the muddled and confused form of the award has invited the High Court to state that the arbitrator has merely restated the contentions of both parties41. Interestingly, the factual narration is coupled with the claimants argument, which is bundled together. A close reading of the same is required to separate the same wherein the Arbitral Tribunal has mixed the arguments with the premise it intended to rely upon for the claimants claim. Further, it has reduced the reasons for respondents defense. In spite of our independent application of mind based on the documents relied upon, but cannot sustain the award in its existing form as there is a requirement of legal reasoning to supplement such conclusion. In this context, the complexity of the subject matter stops us from supplementing such legal reasoning and we cannot sustain the aforesaid award as being reasoned26. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated27. Moreover, umpteen number of judgments of this Court have categorically held that the Courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The Courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act35. The mandate under Section 31(3) of the Arbitration Act is to have reasoning which is intelligible and adequate and, which can in appropriate cases be even implied by the Courts from a fair reading of the award and documents referred to thereunder, if the need be. The aforesaid provision does not require an elaborate judgment to be passed by the arbitrators having regards to the speedy resolution of dispute. | 0 | 6,245 | 1,255 | ### 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:
Coming to the last aspect concerning the challenge on adequacy of reasons, the Court while exercising jurisdiction under Section 34 has to adjudicate the validity of such an award based on the degree of particularity of reasoning required having regard to the nature of issues falling for consideration. The degree of particularity cannot be stated in a precise manner as the same would depend on the complexity of the issue. Even if the Court comes to a conclusion that there were gaps in the reasoning for the conclusions reached by the Tribunal, the Court needs to have regard to the documents submitted by the parties and the contentions raised before the Tribunal so that awards with inadequate reasons are not set aside in casual and cavalier manner. On the other hand, ordinarily unintelligible awards are to be set aside, subject to party autonomy to do away with the reasoned award. Therefore, the courts are required to be careful while distinguishing between inadequacy of reasons in an award and unintelligible awards. 37. At this juncture it must be noted that the legislative intention of providing Section 34 (4) in the Arbitration Act was to make the award enforceable, after giving an opportunity to the Tribunal to undo the curable defects. This provision cannot be brushed aside and the High Court could not have proceeded further to determine the issue on merits. 38. In case of absence of reasoning the utility has been provided under of Section 34(4) of the Arbitration Act to cure such defects. When there is complete perversity in the reasoning then only it can be challenged under the provisions of Section 34 of the Arbitration Act. The power vested under Section 34 (4) of the Arbitration Act to cure defects can be utilized in cases where the arbitral award does not provide any reasoning or if the award has some gap in the reasoning or otherwise and that can be cured so as to avoid a challenge based on the aforesaid curable defects under Section 34 of the Arbitration Act. However, in this case such remand to the Tribunal would not be beneficial as this case has taken more than 25 years for its adjudication. It is in this state of affairs that we lament that the purpose of arbitration as an effective and expeditious forum itself stands effaced. 39. It may be noted that when the High Court concluded that there was no reasoned award, then the award ceased to exist and the Court was functus officio under Section 34 of the Arbitration Act for hearing the challenge to the award under the provisions of Section 34 and come to a conclusion that the arbitration award was not in terms of the agreement. In such case, the High Court ought to have considered remanding the matter to the Tribunal in the usual course. However, the High Court analyzed the case on merits, but, for different reasons and we need not go into the validity of High Courts interference. 40. Coming back to the award, we need to see whether the award of the Arbitral Tribunal can be sustained in the instant case. Although the Arbitral Tribunal has dealt with the claims separately under different sub-headings, the award is confusing and has jumbled the contentions, facts and reasoning, without appropriate distinction. The Tribunal rendered the award with narration of facts with references to the annexures wherever it relied upon by it. The Tribunal abruptly concluded at the end of the factual narration, without providing any reasons, in the following manner: (3) Claim for unproductive usage of machineries …. (g) All the above facts clearly establish that the machineries deployed by the Claimant had to do unproductive work by shifting from one place to another to suit the availability of work.The contract contemplates only payment for actual turnover of earthwork and for this they had received amount totaling to Rs. 1709782.88. The Claimant claims that the hire charges paid to the machineries, men and engineers should be reimbursed to him. He has given the actual expenses in his claim statement. (emphasis supplied) 41. Interestingly, the factual narration is coupled with the claimants argument, which is bundled together. A close reading of the same is required to separate the same wherein the Arbitral Tribunal has mixed the arguments with the premise it intended to rely upon for the claimants claim. Further, it has reduced the reasons for respondents defense. In spite of our independent application of mind based on the documents relied upon, but cannot sustain the award in its existing form as there is a requirement of legal reasoning to supplement such conclusion. In this context, the complexity of the subject matter stops us from supplementing such legal reasoning and we cannot sustain the aforesaid award as being reasoned. 42. It may be beneficial to reduce the concluding paragraph of the award, which reads as under: 3.4. The above arguments and various authorities quoted by them have been studied by the Tribunal and we are convinced that the compensation is payable on the hire charges and expenses incurred by the claimant based on the claims made by him in June 95 and now submitted by the claimant in his revised claim petition on 05.07.1997. We are convinced that the machineries have been actually mobilized from the letter R¬3, R¬8 and R-10 issued by DCM reporting on the number of machineries deployed by Claimant. The Claimants have produced the log books and bills for the various machineries and modified their claims. The tribunal had perused the log books and idle wages approved in C¬7 by Respondent and the claims made in R¬17. (emphasis supplied) 43. From the facts, we can only state that from a perusal of the award, in the facts and circumstances of the case, it has been rendered without reasons. However, the muddled and confused form of the award has invited the High Court to state that the arbitrator has merely restated the contentions of both parties.
### Response:
0
### Explanation:
as the same would depend on the complexity of the issue. Even if the Court comes to a conclusion that there were gaps in the reasoning for the conclusions reached by the Tribunal, the Court needs to have regard to the documents submitted by the parties and the contentions raised before the Tribunal so that awards with inadequate reasons are not set aside in casual and cavalier manner. On the other hand, ordinarily unintelligible awards are to be set aside, subject to party autonomy to do away with the reasoned award. Therefore, the courts are required to be careful while distinguishing between inadequacy of reasons in an award and unintelligible awards37. At this juncture it must be noted that the legislative intention of providing Section 34 (4) in the Arbitration Act was to make the award enforceable, after giving an opportunity to the Tribunal to undo the curable defects. This provision cannot be brushed aside and the High Court could not have proceeded further to determine the issue on merits38. In case of absence of reasoning the utility has been provided under of Section 34(4) of the Arbitration Act to cure such defects. When there is complete perversity in the reasoning then only it can be challenged under the provisions of Section 34 of the Arbitration Act. The power vested under Section 34 (4) of the Arbitration Act to cure defects can be utilized in cases where the arbitral award does not provide any reasoning or if the award has some gap in the reasoning or otherwise and that can be cured so as to avoid a challenge based on the aforesaid curable defects under Section 34 of the Arbitration Act. However, in this case such remand to the Tribunal would not be beneficial as this case has taken more than 25 years for its adjudication. It is in this state of affairs that we lament that the purpose of arbitration as an effective and expeditious forum itself stands effaced39. It may be noted that when the High Court concluded that there was no reasoned award, then the award ceased to exist and the Court was functus officio under Section 34 of the Arbitration Act for hearing the challenge to the award under the provisions of Section 34 and come to a conclusion that the arbitration award was not in terms of the agreement. In such case, the High Court ought to have considered remanding the matter to the Tribunal in the usual course. However, the High Court analyzed the case on merits, but, for different reasons and we need not go into the validity of High Courts interference40. Coming back to the award, we need to see whether the award of the Arbitral Tribunal can be sustained in the instant case. Although the Arbitral Tribunal has dealt with the claims separately under different sub-headings, the award is confusing and has jumbled the contentions, facts and reasoning, without appropriate distinction. The Tribunal rendered the award with narration of facts with references to the annexures wherever it relied upon by it. The Tribunal abruptly concluded at the end of the factual narration, without providing any reasons43. From the facts, we can only state that from a perusal of the award, in the facts and circumstances of the case, it has been rendered without reasons. However, the muddled and confused form of the award has invited the High Court to state that the arbitrator has merely restated the contentions of both parties41. Interestingly, the factual narration is coupled with the claimants argument, which is bundled together. A close reading of the same is required to separate the same wherein the Arbitral Tribunal has mixed the arguments with the premise it intended to rely upon for the claimants claim. Further, it has reduced the reasons for respondents defense. In spite of our independent application of mind based on the documents relied upon, but cannot sustain the award in its existing form as there is a requirement of legal reasoning to supplement such conclusion. In this context, the complexity of the subject matter stops us from supplementing such legal reasoning and we cannot sustain the aforesaid award as being reasoned26. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated27. Moreover, umpteen number of judgments of this Court have categorically held that the Courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The Courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act35. The mandate under Section 31(3) of the Arbitration Act is to have reasoning which is intelligible and adequate and, which can in appropriate cases be even implied by the Courts from a fair reading of the award and documents referred to thereunder, if the need be. The aforesaid provision does not require an elaborate judgment to be passed by the arbitrators having regards to the speedy resolution of dispute.
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The Akola Electric Supply Co- Vs. J. N. Jarare & Ors | application for referring this and other disputes for arbitration contained the frank statement that it was in view of the impending closure of business that the claim for gratuity was being made. It is interesting to notice that the earlier award by tile Industrial Court was made only two days before the Companys license expired and the business was taken over by the Bombay Electricity Board. The award now under appeal was made more than a year after the Company had closed its business.The main contention urged before us in support of the appeal is that the Tribunal was not justified in imposing on the Company a gratuity scheme at a time when it had already ceased to carry on its business. It is argued that gratuity schemes are planned on a long term basis, the ruling principle being to make the employer to pay retiral benefits to such of its employees as, retire from year to year. The framing of a gratuity scheme when an industry is on the verge of closure or after it has closed is, it is urged, wholly unjustified. In our opinion, tkere is considerable force in this contention.3. It has been laid down by this Court that the statutory provision for payment of retrenchment compensation is no bar to the framing of a gratuity scheme. Thec question was fully considered by this Court in Indian Hume Pipe Co. v. Its Workmen ([1960] 2 S.C.R. 32.), where this Court pointed out that while gratuity is intended to help workmen after retirement to whatever cause the retirement may be due to, retrenchment compensation is intended to give relief for the sudden and unexpected termination of employment by givinog partial protection to the retrenched person and his family to enable them to tide over the hard period of unemployment. It has also been held by this Court in the Bharatkhand Textile Mfg. Co. Ltd, v. Textile labour Asson. ([1960] 3 S.C.R. 329, ), that the existence of a Provident Fund Scheme is also no bar to the provision of further retiral benefit by way of gratuitv scheme.4. Learned Counsel for the respondent seems to think that these cases somehow supported his contention that the fact that an industry is going to close or has actually closed is no bar to a framing of gratuity scheme for its employees. We are unable to see however anything in these decisions of this Court to assist such a plea. In neither of these cases nor in any other case that we know of had this Court to consider the question of a gratuity scheme in an industry which is going to close in the near future or has already been closed. Indeed, we know of no case in which an Industrial Tribunal has ever framed a gratuity scheme for an industry which was not expected to carry on or has ceased to carry on its business. In all the cases that have come before Industrial Tribunal or this Court gratuity schemes asked for or allowed have been in industries which were expected to carry on fora fairly long time. One of the important factors which requires consideration in deciding on the propriety of a scheme of gratuity is the ability of the industry to bear the additional financial burden and in deciding this question it has been repeatedly pointed out, the burden from year to year has to be considered after taking into account the average number of retirements likely to take place in a year. Thus in the Bharatkhand Textile Mfg. case ([1960] 3 S.C.R, 329), this Court in discussing the considerations that arise in such matters, said:-"........ there can be no doubt that before framing a Scheme for gratuity industrial adjudication has to take into account several relevant facts; the financial condition of the employer, his profit making capacity, the profits earned by him the past, the extent of his reserves and the chances of his replenishing them as well as the claims for capital invested by him, these and other material considerations may have to be borne in mind in determining the terms of the gratuity scheme ............ it appears also to be well recognised that though the grant of a claim for gratuity must depend upon the capacity of the employer to stand the burden on a long term basis it would not be permissible to place undue emphasis either on the temporary prosperity or the temporary adversity of the employer. In evolving a long-term scheme a long-term view has to be taken of the employers financial condition and it is on such a basis alone that the question as to whether a scheme should be framed or not must be decided......"5. These observations emphasise the position that gratuity schemes are always made in the expectation of the industry continuing to function for a long time to come. It has to be noticed that the provision for gratuity scheme is not based on any statutory enactment, but has been evolved by industrial adjudication as a step to achieve social justice. In doing so, industrial adjudication has proceeded on the basis that only a small percentage of the workmen retire in any particular year and so the provision for paying gratuity to retiring workmen would ordinarily be not an unreasonable burden for the employer to be asked to bear.6. The position is materially altered however when the industry is expected to close in the immediate future, or has actually closed. In such a case the entire body of workmen will "retiring" at one and the same time so that in substance, though not in name, the provision of gratuity would be equivalent to the grant of retrenchment compensation, in addition to what is provided for in the statute. We can find no justification for this in the principles of social justice.7. We have therefore come to the conclusion that the Industrial Court acted wrongly in directing any gratuity to be paid by the Company to its employees.8. | 1[ds]These observations emphasise the position that gratuity schemes are always made in the expectation of the industry continuing to function for a long time to come. It has to be noticed that the provision for gratuity scheme is not based on any statutory enactment, but has been evolved by industrial adjudication as a step to achieve social justice. In doing so, industrial adjudication has proceeded on the basis that only a small percentage of the workmen retire in any particular year and so the provision for paying gratuity to retiring workmen would ordinarily be not an unreasonable burden for the employer to be asked toposition is materially altered however when the industry is expected to close in the immediate future, or has actually closed. In such a case the entire body of workmen will "retiring" at one and the same time so that in substance, though not in name, the provision of gratuity would be equivalent to the grant of retrenchment compensation, in addition to what is provided for in the statute. We can find no justification for this in the principles of socialhave therefore come to the conclusion that the Industrial Court acted wrongly in directing any gratuity to be paid by the Company to its employees. | 1 | 1,470 | 225 | ### 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:
application for referring this and other disputes for arbitration contained the frank statement that it was in view of the impending closure of business that the claim for gratuity was being made. It is interesting to notice that the earlier award by tile Industrial Court was made only two days before the Companys license expired and the business was taken over by the Bombay Electricity Board. The award now under appeal was made more than a year after the Company had closed its business.The main contention urged before us in support of the appeal is that the Tribunal was not justified in imposing on the Company a gratuity scheme at a time when it had already ceased to carry on its business. It is argued that gratuity schemes are planned on a long term basis, the ruling principle being to make the employer to pay retiral benefits to such of its employees as, retire from year to year. The framing of a gratuity scheme when an industry is on the verge of closure or after it has closed is, it is urged, wholly unjustified. In our opinion, tkere is considerable force in this contention.3. It has been laid down by this Court that the statutory provision for payment of retrenchment compensation is no bar to the framing of a gratuity scheme. Thec question was fully considered by this Court in Indian Hume Pipe Co. v. Its Workmen ([1960] 2 S.C.R. 32.), where this Court pointed out that while gratuity is intended to help workmen after retirement to whatever cause the retirement may be due to, retrenchment compensation is intended to give relief for the sudden and unexpected termination of employment by givinog partial protection to the retrenched person and his family to enable them to tide over the hard period of unemployment. It has also been held by this Court in the Bharatkhand Textile Mfg. Co. Ltd, v. Textile labour Asson. ([1960] 3 S.C.R. 329, ), that the existence of a Provident Fund Scheme is also no bar to the provision of further retiral benefit by way of gratuitv scheme.4. Learned Counsel for the respondent seems to think that these cases somehow supported his contention that the fact that an industry is going to close or has actually closed is no bar to a framing of gratuity scheme for its employees. We are unable to see however anything in these decisions of this Court to assist such a plea. In neither of these cases nor in any other case that we know of had this Court to consider the question of a gratuity scheme in an industry which is going to close in the near future or has already been closed. Indeed, we know of no case in which an Industrial Tribunal has ever framed a gratuity scheme for an industry which was not expected to carry on or has ceased to carry on its business. In all the cases that have come before Industrial Tribunal or this Court gratuity schemes asked for or allowed have been in industries which were expected to carry on fora fairly long time. One of the important factors which requires consideration in deciding on the propriety of a scheme of gratuity is the ability of the industry to bear the additional financial burden and in deciding this question it has been repeatedly pointed out, the burden from year to year has to be considered after taking into account the average number of retirements likely to take place in a year. Thus in the Bharatkhand Textile Mfg. case ([1960] 3 S.C.R, 329), this Court in discussing the considerations that arise in such matters, said:-"........ there can be no doubt that before framing a Scheme for gratuity industrial adjudication has to take into account several relevant facts; the financial condition of the employer, his profit making capacity, the profits earned by him the past, the extent of his reserves and the chances of his replenishing them as well as the claims for capital invested by him, these and other material considerations may have to be borne in mind in determining the terms of the gratuity scheme ............ it appears also to be well recognised that though the grant of a claim for gratuity must depend upon the capacity of the employer to stand the burden on a long term basis it would not be permissible to place undue emphasis either on the temporary prosperity or the temporary adversity of the employer. In evolving a long-term scheme a long-term view has to be taken of the employers financial condition and it is on such a basis alone that the question as to whether a scheme should be framed or not must be decided......"5. These observations emphasise the position that gratuity schemes are always made in the expectation of the industry continuing to function for a long time to come. It has to be noticed that the provision for gratuity scheme is not based on any statutory enactment, but has been evolved by industrial adjudication as a step to achieve social justice. In doing so, industrial adjudication has proceeded on the basis that only a small percentage of the workmen retire in any particular year and so the provision for paying gratuity to retiring workmen would ordinarily be not an unreasonable burden for the employer to be asked to bear.6. The position is materially altered however when the industry is expected to close in the immediate future, or has actually closed. In such a case the entire body of workmen will "retiring" at one and the same time so that in substance, though not in name, the provision of gratuity would be equivalent to the grant of retrenchment compensation, in addition to what is provided for in the statute. We can find no justification for this in the principles of social justice.7. We have therefore come to the conclusion that the Industrial Court acted wrongly in directing any gratuity to be paid by the Company to its employees.8.
### Response:
1
### Explanation:
These observations emphasise the position that gratuity schemes are always made in the expectation of the industry continuing to function for a long time to come. It has to be noticed that the provision for gratuity scheme is not based on any statutory enactment, but has been evolved by industrial adjudication as a step to achieve social justice. In doing so, industrial adjudication has proceeded on the basis that only a small percentage of the workmen retire in any particular year and so the provision for paying gratuity to retiring workmen would ordinarily be not an unreasonable burden for the employer to be asked toposition is materially altered however when the industry is expected to close in the immediate future, or has actually closed. In such a case the entire body of workmen will "retiring" at one and the same time so that in substance, though not in name, the provision of gratuity would be equivalent to the grant of retrenchment compensation, in addition to what is provided for in the statute. We can find no justification for this in the principles of socialhave therefore come to the conclusion that the Industrial Court acted wrongly in directing any gratuity to be paid by the Company to its employees.
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Tata Engineering & Locomotive Co. Ltd Vs. The Sales Tax Officer & Regional Transportofficer, Poona An | a tax on passengers, carried in certain classes of public service. vehicles in the State of Bombay. It is hereby enacted in the Ninth Year of the Re public of India as follows."3. A perusal of the Preamble clearly reveals that the dominant object of the Act was to impose tax on certain classes of public service vehicles. In other words, the Preamble indicates that vehicles which could not be termed as public service vehicles fell beyond the ambit of the taxing provisions of the Act.Section 2(7) of the Act defines stage carriage thus:-"stage carriage means a motor vehicle carrying or adapted t o carry more than six persons excluding the driver, which carries passengers for hire or reward, at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey, and includes such a carriage or other omnibus when used as a contract carriage within the meaning of the Motor Vehicles Act, 1939".Section 3 which is the charging section runs thus:-"3. (1) There shall be levied and paid to the State Government a tax on all passengers carried by road in stage carriages at such rate to be filed by the State Government from time to time by order in the official Gazette as would yield an amount not exceeding twenty per cent of the inclusive amount of fares payable to the operator of a stage carriage.(2) After calculating the total amount of tax payable under sub-section (1) out of the total amount received by an operator during each month on account of inclusive fares in respect of the stage carriage or stage carriages held by him the total amount of the tax shall wherever necessary be rounded off to the nearest naya paisa, fractions of half a naya paisa and over being counted as one and less than half being disregarded".Thus section 3 authorises the levy of tax on all passengers carriages by road in stage carriages. This section contains two essential ingredients: (1) that the transport concerned must carry passengers by road, and (2) that such passengers must be carried in stage carriages. that is to say, as defined in section 2(7) of the Act, passengers must be carried for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey.4. Rule 2(i) of the Bombay Motor Vehicle Rules, 1940 framed under the Bombay Motor Vehicles Act, 1939 defines passenger thus:-" passenger for the purposes of the rules in Chapter IV means any person travelling in a public service vehicle other than the driver or the conductor or an employee of the permit holder while on duty".5. A combined reading, therefore, of rule 2(i) and section 2(7) of the Act clearly indicates that the tax would be leviable only if the passengers are carried on a public service vehicle. It is true that the term public service vehicle has not been defined either by the Act or by the Rules, but that however does not create any difficulty, because having regard to the Preamble of the Act we are of the opinion that the tax can be levied only on passengers who are carried by a stage carriage which is of the nature of a public service vehicle. The word public has got a well known connotation and means a carriage to which any member of the public can have free access on payment of the usual charges. It cannot by any process of reasoning or stretch of imagination be deemed to include employees of a private company who are given facilities not as members of the public but as holding a special status, namely, the employees of that company. Thus, qua public the employees form a separate class and cannot be said to be public as contemplated by rule 2(i). On the other hand, the Bombay Motor Vehicles Rules 1959 define private service vehicles as follows:"Private Service Vehicle means any omnibus constructed or adapted to carry more than nine persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for or in connection with his trade or business, or otherwise than for hi re or reward; but does not include a motor vehicle used solely for Police purposes".6. The transport service in the present case which was registered as private service vehicle falls squarely within the ambit of the aforesaid definition Moreover, in the instant case, it is not disputed that the transport provided to the employees of the company was reserved for them only and no other member of the public even if he wanted to pay full charges could be carried on the said vehicle. In these circumstances, therefore, it cannot be said that the transport vehicle provided to the employees by the appellants could be a public service vehicle in any sense of the term. Mr. Nariman drew our attention to a number of rules and forms in order to illustrate his point that private service vehicle was beyond the ambit of the charging section. In view of what we have already said, it is not necessary for us to go into such meticulous details, because the legal position appears to be clear enough. As counsel for the appellants has already undertaken not to charge any amount from the employees for providing transport facilities, the point has now become more or less academic. The Commissioner appear s to have dismissed the appeals of the appellants as he felt bound by the judgment of the Bombay High Court which had held that the transport vehicle provided to the employees by the company would be a public service vehicle. In view of our finding that such a transport vehicle is not a public service vehicle within the meaning of the provisions of the Bombay Motor Vehicles Act, the view taken by the Bombay High Court is clearly erroneous and must be overruled.7. | 1[ds]A combined reading, therefore, of rule 2(i) and section 2(7) of the Act clearly indicates that the tax would be leviable only if the passengers are carried on a public service vehicle. It is true that the term public service vehicle has not been defined either by the Act or by the Rules, but that however does not create any difficulty, because having regard to the Preamble of the Act we are of the opinion that the tax can be levied only on passengers who are carried by a stage carriage which is of the nature of a public service vehicle. The word public has got a well known connotation and means a carriage to which any member of the public can have free access on payment of the usual charges. It cannot by any process of reasoning or stretch of imagination be deemed to include employees of a private company who are given facilities not as members of the public but as holding a special status, namely, the employees of thattransport service in the present case which was registered as private service vehicle falls squarely within the ambit of the aforesaid definition Moreover, in the instant case, it is not disputed that the transport provided to the employees of the company was reserved for them only and no other member of the public even if he wanted to pay full charges could be carried on the said vehicle. In these circumstances, therefore, it cannot be said that the transport vehicle provided to the employees by the appellants could be a public service vehicle in any sense of theThe Commissioner appear s to have dismissed the appeals of the appellants as he felt bound by the judgment of the Bombay High Court which had held that the transport vehicle provided to the employees by the company would be a public service vehicle. In view of our finding that such a transport vehicle is not a public service vehicle within the meaning of the provisions of the Bombay Motor Vehicles Act, the view taken by the Bombay High Court is clearly erroneous and must be overruled.is manifest that if the appellants had not levied any charge at all for the transport facilities granted to the employees they would not be exigible to passengerour opinion, the contention of the learned counsel is well founded and must prevail.The Bombay Motor Vehicles (Taxation on Passengers) Act, 1958 hereinafter called the Act is a statute which authorises the levy of passenger tax. This Act has been amended several times right from the year 1960 to 1975. Before analysing the relevant provisions of the Act, it may be necessary to extract the Preamble to the Act which runsperusal of the Preamble clearly reveals that the dominant object of the Act was to impose tax on certain classes of public service vehicles. In other words, the Preamble indicates that vehicles which could not be termed as public service vehicles fell beyond the ambit of the taxing provisions of thesection 3 authorises the levy of tax on all passengers carriages by road in stage carriages. This section contains two essential ingredients: (1) that the transport concerned must carry passengers by road, and (2) that such passengers must be carried in stage carriages. that is to say, as defined in section 2(7) of the Act, passengers must be carried for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. | 1 | 1,629 | 636 | ### Instruction:
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a tax on passengers, carried in certain classes of public service. vehicles in the State of Bombay. It is hereby enacted in the Ninth Year of the Re public of India as follows."3. A perusal of the Preamble clearly reveals that the dominant object of the Act was to impose tax on certain classes of public service vehicles. In other words, the Preamble indicates that vehicles which could not be termed as public service vehicles fell beyond the ambit of the taxing provisions of the Act.Section 2(7) of the Act defines stage carriage thus:-"stage carriage means a motor vehicle carrying or adapted t o carry more than six persons excluding the driver, which carries passengers for hire or reward, at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey, and includes such a carriage or other omnibus when used as a contract carriage within the meaning of the Motor Vehicles Act, 1939".Section 3 which is the charging section runs thus:-"3. (1) There shall be levied and paid to the State Government a tax on all passengers carried by road in stage carriages at such rate to be filed by the State Government from time to time by order in the official Gazette as would yield an amount not exceeding twenty per cent of the inclusive amount of fares payable to the operator of a stage carriage.(2) After calculating the total amount of tax payable under sub-section (1) out of the total amount received by an operator during each month on account of inclusive fares in respect of the stage carriage or stage carriages held by him the total amount of the tax shall wherever necessary be rounded off to the nearest naya paisa, fractions of half a naya paisa and over being counted as one and less than half being disregarded".Thus section 3 authorises the levy of tax on all passengers carriages by road in stage carriages. This section contains two essential ingredients: (1) that the transport concerned must carry passengers by road, and (2) that such passengers must be carried in stage carriages. that is to say, as defined in section 2(7) of the Act, passengers must be carried for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey.4. Rule 2(i) of the Bombay Motor Vehicle Rules, 1940 framed under the Bombay Motor Vehicles Act, 1939 defines passenger thus:-" passenger for the purposes of the rules in Chapter IV means any person travelling in a public service vehicle other than the driver or the conductor or an employee of the permit holder while on duty".5. A combined reading, therefore, of rule 2(i) and section 2(7) of the Act clearly indicates that the tax would be leviable only if the passengers are carried on a public service vehicle. It is true that the term public service vehicle has not been defined either by the Act or by the Rules, but that however does not create any difficulty, because having regard to the Preamble of the Act we are of the opinion that the tax can be levied only on passengers who are carried by a stage carriage which is of the nature of a public service vehicle. The word public has got a well known connotation and means a carriage to which any member of the public can have free access on payment of the usual charges. It cannot by any process of reasoning or stretch of imagination be deemed to include employees of a private company who are given facilities not as members of the public but as holding a special status, namely, the employees of that company. Thus, qua public the employees form a separate class and cannot be said to be public as contemplated by rule 2(i). On the other hand, the Bombay Motor Vehicles Rules 1959 define private service vehicles as follows:"Private Service Vehicle means any omnibus constructed or adapted to carry more than nine persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for or in connection with his trade or business, or otherwise than for hi re or reward; but does not include a motor vehicle used solely for Police purposes".6. The transport service in the present case which was registered as private service vehicle falls squarely within the ambit of the aforesaid definition Moreover, in the instant case, it is not disputed that the transport provided to the employees of the company was reserved for them only and no other member of the public even if he wanted to pay full charges could be carried on the said vehicle. In these circumstances, therefore, it cannot be said that the transport vehicle provided to the employees by the appellants could be a public service vehicle in any sense of the term. Mr. Nariman drew our attention to a number of rules and forms in order to illustrate his point that private service vehicle was beyond the ambit of the charging section. In view of what we have already said, it is not necessary for us to go into such meticulous details, because the legal position appears to be clear enough. As counsel for the appellants has already undertaken not to charge any amount from the employees for providing transport facilities, the point has now become more or less academic. The Commissioner appear s to have dismissed the appeals of the appellants as he felt bound by the judgment of the Bombay High Court which had held that the transport vehicle provided to the employees by the company would be a public service vehicle. In view of our finding that such a transport vehicle is not a public service vehicle within the meaning of the provisions of the Bombay Motor Vehicles Act, the view taken by the Bombay High Court is clearly erroneous and must be overruled.7.
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A combined reading, therefore, of rule 2(i) and section 2(7) of the Act clearly indicates that the tax would be leviable only if the passengers are carried on a public service vehicle. It is true that the term public service vehicle has not been defined either by the Act or by the Rules, but that however does not create any difficulty, because having regard to the Preamble of the Act we are of the opinion that the tax can be levied only on passengers who are carried by a stage carriage which is of the nature of a public service vehicle. The word public has got a well known connotation and means a carriage to which any member of the public can have free access on payment of the usual charges. It cannot by any process of reasoning or stretch of imagination be deemed to include employees of a private company who are given facilities not as members of the public but as holding a special status, namely, the employees of thattransport service in the present case which was registered as private service vehicle falls squarely within the ambit of the aforesaid definition Moreover, in the instant case, it is not disputed that the transport provided to the employees of the company was reserved for them only and no other member of the public even if he wanted to pay full charges could be carried on the said vehicle. In these circumstances, therefore, it cannot be said that the transport vehicle provided to the employees by the appellants could be a public service vehicle in any sense of theThe Commissioner appear s to have dismissed the appeals of the appellants as he felt bound by the judgment of the Bombay High Court which had held that the transport vehicle provided to the employees by the company would be a public service vehicle. In view of our finding that such a transport vehicle is not a public service vehicle within the meaning of the provisions of the Bombay Motor Vehicles Act, the view taken by the Bombay High Court is clearly erroneous and must be overruled.is manifest that if the appellants had not levied any charge at all for the transport facilities granted to the employees they would not be exigible to passengerour opinion, the contention of the learned counsel is well founded and must prevail.The Bombay Motor Vehicles (Taxation on Passengers) Act, 1958 hereinafter called the Act is a statute which authorises the levy of passenger tax. This Act has been amended several times right from the year 1960 to 1975. Before analysing the relevant provisions of the Act, it may be necessary to extract the Preamble to the Act which runsperusal of the Preamble clearly reveals that the dominant object of the Act was to impose tax on certain classes of public service vehicles. In other words, the Preamble indicates that vehicles which could not be termed as public service vehicles fell beyond the ambit of the taxing provisions of thesection 3 authorises the levy of tax on all passengers carriages by road in stage carriages. This section contains two essential ingredients: (1) that the transport concerned must carry passengers by road, and (2) that such passengers must be carried in stage carriages. that is to say, as defined in section 2(7) of the Act, passengers must be carried for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey.
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JIGNESH SHAH Vs. UNION OF INDIA | (In European Life Assurance Society, Re [LR (1869) 9 Eq 122] ; V.V. Krishna Iyer & Sons v. New Era Mfg. Co. Ltd. [(1965) 35 Comp Cas 410 : (1965) 1 Comp LJ 179 (Ker)])?This passage is in the context of an order under 433(e) of the Companies Act, 1956 being discretionary, which is referred to in the preceding paragraph 25. As stated hereinabove, the facts as to commercial insolvency are to be pleaded and proved at the admission stage of the winding up petition; the trigger for the winding up proceeding for limitation purposes, as has been stated hereinabove, being the date of default.27. Shri Kaul then relied upon Mediquip Systems (P) Ltd. v. Proxima Medical System GMBH (2005) 7 SCC 42 and in particular, paragraphs 18 and 23 thereof, which state as follows:"18. This Court in a catena of decisions has held that an order under Section 433(e) of the Companies Act is discretionary. There must be a debt due and the company must be unable to pay the same. A debt under this section must be a determined or a definite sum of money payable immediately or at a future date and that the inability referred to in the expression ?unable to pay its debts? in Section 433(e) of the Companies Act should be taken in the commercial sense and that the machinery for winding up will not be allowed to be utilised merely as a means for realising debts due from a company.xxx xxx xxx23. The Bombay High Court has laid down the following principles in Softsule (P) Ltd., Re [(1977) 47 Comp Cas 438 (Bom)] : (Comp Cas pp. 443-44)Firstly, it is well settled that a winding-up petition is not legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company. If the debt is not disputed on some substantial ground, the court/Tribunal may decide it on the petition and make the order.Secondly, if the debt is bona fide disputed, there cannot be ?neglect to pay? within the meaning of Section 433(1)(a) of the Companies Act, 1956. If there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to pay its debts is not substantiated.Thirdly, a debt about the liability to pay which at the time of the service of the insolvency notice, there is a bona fide dispute, is not ?due? within the meaning of Section 434(1)(a) and non-payment of the amount of such a bona fide disputed debt cannot be termed as ?neglect to pay? the same so as to incur the liability under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956.Fourthly, one of the considerations in order to determine whether the company is able to pay its debts or not is whether the company is able to meet its liabilities as and when they accrue due. Whether it is commercially solvent means that the company should be in a position to meet its liabilities as and when they arise.?28. The Bombay High Court judgment referred to in paragraph 23 of the judgment above states the law on winding up petitions filed under Section 433(a) of the Companies Act, 1956 correctly. The primary test is set out in paragraph 1, which is that a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the Company. Absent such dispute, the petition may be admitted. Equally, where the debt is bona fide disputed, there cannot be ‘neglect to pay? within the meaning of Section 434(1)(a) of the Companies Act, 1956 so that the deeming provision then does not come into play. Also, the moment there is a bona fide dispute, the debt is then not ‘due?. The High Court also correctly appreciates that whether the company is commercially solvent is one of the considerations in order to determine whether the company is able to pay its debts or not.29. Even on the facts of this case, the Winding up Petition alleges that the ultimatum to the Respondent company asserting that the Respondent company was legally obliged to purchase the requisite shares in accordance with the terms of the Letter of Undertaking was on 7 th January, 2013. By this date at the very latest, the cause of action for filing a petition under Section 433(e) certainly arose. Also, as has been correctly pointed out by Dr. Singhvi, the statutory notice given on 3 rd November, 2015 does not refer to any facts as to the commercial insolvency of La-Fin. The statutory notice only refers to the suit proceedings and attachment by the EOW which had taken place long before in December 2013. Factually, therefore, no basis is laid for the legal contentions argued before us by Shri Kaul.30. In the Winding up Petition itself, what is referred to is the fall in the assets of La-Fin to being worth approximately INR 200 crores as of October, 2016, which again does not correlate with 3 rd November, 2015, being the date on which the statutory notice was itself issued. This again is only for the purpose of appointing an Officer of the Court as Official Liquidator in order to manage the day-to-day affairs and otherwise secure and safeguard the assets of the Respondent company. There is no averment in the petition that thanks to these or other facts the Company?s substratum has disappeared, or that the Company is otherwise commercially insolvent. It is clear therefore that even on facts, the company?s substratum disappearing or the commercial insolvency of the company has not been pleaded. Whereas, in Form-1, upon transfer of the winding up proceedings to the NCLT, what is correctly stated is that the date of default is 19 th August, 2012; making it clear that three-years from that date had long since elapsed when the Winding up Petition under Section 433(e) was filed on 21 st October, 2016. | 1[ds]10. This judgment clinches the issue in favour of the Petitioner/Appellant. With the introduction of Section 238A into the Code, the provisions of the Limitation Act apply to applications made under the Code. Winding up petitions filed before the Code came into force are now converted into petitions filed under the Code. What has, therefore, to be decided is whether the Winding up Petition, on the date that it was filed, is barred by lapse of time. If such petition is found to be time-barred, then Section 238A of the Code will not give a new lease of life to such a time-barred petition. On the facts of this case, it is clear that as the Winding up Petition was filed beyond three years from August, 2012 which is when, even according to IL&FS, default in repayment had occurred, it is barred by time.The aforesaid judgments correctly hold that a suit for recovery based upon a cause of action that is within limitation cannot in any manner impact the separate and independent remedy of a winding up proceeding. In law, when time begins to run, it can only be extended in the manner provided in the Limitation Act. For example, an acknowledgement of liability under Section 18 of the Limitation Act would certainly extend the limitation period, but a suit for recovery, which is a separate and independent proceeding distinct from the remedy of winding up would, in no manner, impact the limitation within which the winding up proceeding is to be filed, by somehow keeping the debt alive for the purpose of the winding upcontext in which the learned Single Judge made an observation that the filing of a suit within limitation would keep the debt alive, is in the context of Section 13 of the Presidency-towns Insolvency Act, 1909 - which requires that the debt of the petitioning creditor should be alive even at the hearing of the insolvency petition. Obviously, if at the hearing of the petition, the debt was time-barred, the stringent result of insolvency of the individual concerned would not follow. It is in this context that the learned Single Judge held that a debt would be subsisting at the date of hearing of the insolvency petition if a suit was filed to recover it within the period of limitation. The context of Section 13 of the Presidency-towns Insolvency Act, 1909 is far removed from the present context, in which what has to be seen is whether a winding up proceeding has been filed within the limitation period provided. In the facts of the present case, no question as to subsistence of a live debt at the hearing of a winding up petition is at all involved. This case is, therefore, wholly distinguishable.21. Shri Kaul then relied strongly on the rationale for laws of limitation generally, which was set out in Rajender Singh and Ors. v. Santa Singh and Ors. (1973) 2 SCC 705 asThe policy underlying statutes of limitation, spoken of as statutes of ?repose?, or of ?peace? has been thus stated in Halsburys Laws of England Vol. 24, p. 181 (paraPolicy of Limitation Acts.—The Courts have expressed at least three differing reasons supporting the existence of statutes of limitation, namely: (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.?18. The object of the law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a partys own inaction, negligence, orobservations are apposite in the context of the facts of the present case. It is clear that IL&FS pursued with reasonable diligence the cause of action which arose in August, 2012 by filing a suit against La-Fin for specific performance of the Letter of Undertaking in June, 2013. What has been lost by the aforesaid party?s own inaction or laches, is the filing of the Winding up Petition long after the trigger for filing of the aforesaid petition had taken place; the trigger being the debt that became due to IL&FS, in repayment of which default has takenreading of the aforesaid provisions would show that the starting point of the period of limitation is when the company is unable to pay its debts, and that Section 434 is a deeming provision which refers to three situations in which a Company shall be deemed to be ?unable to pay its debts? under Section 433(e). In the first situation, if a demand is made by the creditor to whom the company is indebted in a sum exceeding one lakh then due, requiring the company to pay the sum so due, and the company has for three weeks thereafter ?neglected to pay the sum?, or to secure or compound for it to the reasonable satisfaction of the creditor. ?Neglected to pay? would arise only on default to pay the sum due, which would clearly be a fixed date depending on the facts of each case. Equally in the second situation, if execution or other process is issued on a decree or order of any Court or Tribunal in favour of a creditor of the company, and is returned unsatisfied in whole or in part, default on the part of the debtor company occurs. This again is clearly a fixed date depending on the facts of each case. And in the third situation, it is necessary to prove to the ?satisfaction of the Tribunal? that the company is unable to pay its debts. Here again, the trigger point is the date on which default is committed, on account of which the Company is unable to pay its debts. This again is a fixed date that can be proved on the facts of each case. Thus, Section 433(e) read with Section 434 of the Companies Act, 1956 would show that the trigger point for the purpose of limitation for filing of a winding up petition under Section 433(e) would be the date of default in payment of the debt in any of the three situations mentioned in Section 434.According to Shri Kaul, it was not possible for his client to approach the High Court with a winding up petition as on the date on which he filed the suit for specific performance, because La-Fin (i.e. the Company sought to be wound up), could not be said to have lost its substratum as on such date. It was for this reason that he approached the winding up Court in 2016, when the assets of La- Fin, which, as of 2013 were worth over INR 1000 crores, had in 2016 become only worth INR 200 crores.25. This judgment does not take Shri Kaul?s argument any further. Nowhere in the Winding up Petition is it alleged that the company sought to be wound-up has lost its substratum, in the sense that there is no reasonable prospect of it ever making a profit in the future, nor can it be said that the company had abandoned its business and is, therefore, unable to meet the outstandings owed by it. On the other hand, what emerges from this judgment (and paragraph 21 therein in particular), is that it is not open for a company to say that a debt is undisputed, that it has ability to pay the debt, but will not pay the debt. Equally, where a debt is clearly owed, but the exact amount of debt is disputed, the company will be held to be unable to pay its debts. What has to be seen in each case is whether the debt is bona fide disputed. If so, without more, a winding up petition would then be dismissed. One other thing must be noticed at this stage. The trigger for limitation is the inability of a company to pay its debts. Undoubtedly, this trigger occurs when a default takes place, after which the debt remains outstanding and is not paid. It is this date alone that is relevant for the purpose of triggering limitation for the filing of a winding up petition. Though it is clear that a winding up proceeding is a proceeding ‘in rem? and not a recovery proceeding, the trigger of limitation, so far as the winding up petition is concerned, would be the date of default. Questions as to commercial solvency arise in cases covered by Sections 434(1) (c) of the Companies Act, 1956, where the debt has first to be proved, after which the Court will then look to the wishes of the other creditors and commercial solvency of the company as a whole. The stage at which the Court, therefore, examines whether the company is commercially insolvent is once it begins to hear the winding up petition for admission on merits. Limitation attaches insofar as petitions filed under Section 433(e) are concerned at the stage that default occurs for, it is at this stage that the debt becomes payable. For this reason, it is difficult to accept Shri Kaul?s submission that the cause of action for the purposes of limitation would include the commercial insolvency or the loss of substratum of the company.The Bombay High Court judgment referred to in paragraph 23 of the judgment above states the law on winding up petitions filed under Section 433(a) of the Companies Act, 1956 correctly. The primary test is set out in paragraph 1, which is that a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the Company. Absent such dispute, the petition may be admitted. Equally, where the debt is bona fide disputed, there cannot be ‘neglect to pay? within the meaning of Section 434(1)(a) of the Companies Act, 1956 so that the deeming provision then does not come into play. Also, the moment there is a bona fide dispute, the debt is then not ‘due?. The High Court also correctly appreciates that whether the company is commercially solvent is one of the considerations in order to determine whether the company is able to pay its debts or not.29. Even on the facts of this case, the Winding up Petition alleges that the ultimatum to the Respondent company asserting that the Respondent company was legally obliged to purchase the requisite shares in accordance with the terms of the Letter of Undertaking was on 7 th January, 2013. By this date at the very latest, the cause of action for filing a petition under Section 433(e) certainly arose. Also, as has been correctly pointed out by Dr. Singhvi, the statutory notice given on 3 rd November, 2015 does not refer to any facts as to the commercial insolvency of La-Fin. The statutory notice only refers to the suit proceedings and attachment by the EOW which had taken place long before in December 2013. Factually, therefore, no basis is laid for the legal contentions argued before us by Shri Kaul.30. In the Winding up Petition itself, what is referred to is the fall in the assets of La-Fin to being worth approximately INR 200 crores as of October, 2016, which again does not correlate with 3 rd November, 2015, being the date on which the statutory notice was itself issued. This again is only for the purpose of appointing an Officer of the Court as Official Liquidator in order to manage the day-to-day affairs and otherwise secure and safeguard the assets of the Respondent company. There is no averment in the petition that thanks to these or other facts the Company?s substratum has disappeared, or that the Company is otherwise commercially insolvent. It is clear therefore that even on facts, the company?s substratum disappearing or the commercial insolvency of the company has not been pleaded. Whereas, in Form-1, upon transfer of the winding up proceedings to the NCLT, what is correctly stated is that the date of default is 19 th August, 2012; making it clear that three-years from that date had long since elapsed when the Winding up Petition under Section 433(e) was filed on 21 st October, 2016.Having heard the learned Senior Counsel for the parties, it is important to first advert to this Court?s decision in B.K. Educational Services Pvt. Ltd. (supra) in which Section 238A of the Code was referred to, which states asLimitation.—The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, apply to the proceedings or appeals before the Adjudicating Authority, the National Company Law Appellate Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, as the case may38. This case is most apposite. As in the present case, and as is reflected in the Insolvency Law Committee Report of March, 2018, the legislature did not contemplate enabling a creditor who has allowed the period of limitation to set in to allow such delayed claims through the mechanism of the Code. The Code cannot be triggered in the year 2017 for a debt which was time- barred, say, in 1990, as that would lead to the absurd and extreme consequence of the Code being triggered by a stale or dead claim, leading to the drastic consequence of instant removal of the present Board of Directors of the corporate debtor permanently, and which may ultimately lead to liquidation and, therefore, corporate death. This being the case, the expression ?debt due? in the definition sections of the Code would obviously only refer to debts that are ?due and payable? in law, i.e., the debts that are not48. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. ?The right to sue?, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.? | 1 | 12,054 | 2,698 | ### 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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(In European Life Assurance Society, Re [LR (1869) 9 Eq 122] ; V.V. Krishna Iyer & Sons v. New Era Mfg. Co. Ltd. [(1965) 35 Comp Cas 410 : (1965) 1 Comp LJ 179 (Ker)])?This passage is in the context of an order under 433(e) of the Companies Act, 1956 being discretionary, which is referred to in the preceding paragraph 25. As stated hereinabove, the facts as to commercial insolvency are to be pleaded and proved at the admission stage of the winding up petition; the trigger for the winding up proceeding for limitation purposes, as has been stated hereinabove, being the date of default.27. Shri Kaul then relied upon Mediquip Systems (P) Ltd. v. Proxima Medical System GMBH (2005) 7 SCC 42 and in particular, paragraphs 18 and 23 thereof, which state as follows:"18. This Court in a catena of decisions has held that an order under Section 433(e) of the Companies Act is discretionary. There must be a debt due and the company must be unable to pay the same. A debt under this section must be a determined or a definite sum of money payable immediately or at a future date and that the inability referred to in the expression ?unable to pay its debts? in Section 433(e) of the Companies Act should be taken in the commercial sense and that the machinery for winding up will not be allowed to be utilised merely as a means for realising debts due from a company.xxx xxx xxx23. The Bombay High Court has laid down the following principles in Softsule (P) Ltd., Re [(1977) 47 Comp Cas 438 (Bom)] : (Comp Cas pp. 443-44)Firstly, it is well settled that a winding-up petition is not legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company. If the debt is not disputed on some substantial ground, the court/Tribunal may decide it on the petition and make the order.Secondly, if the debt is bona fide disputed, there cannot be ?neglect to pay? within the meaning of Section 433(1)(a) of the Companies Act, 1956. If there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to pay its debts is not substantiated.Thirdly, a debt about the liability to pay which at the time of the service of the insolvency notice, there is a bona fide dispute, is not ?due? within the meaning of Section 434(1)(a) and non-payment of the amount of such a bona fide disputed debt cannot be termed as ?neglect to pay? the same so as to incur the liability under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956.Fourthly, one of the considerations in order to determine whether the company is able to pay its debts or not is whether the company is able to meet its liabilities as and when they accrue due. Whether it is commercially solvent means that the company should be in a position to meet its liabilities as and when they arise.?28. The Bombay High Court judgment referred to in paragraph 23 of the judgment above states the law on winding up petitions filed under Section 433(a) of the Companies Act, 1956 correctly. The primary test is set out in paragraph 1, which is that a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the Company. Absent such dispute, the petition may be admitted. Equally, where the debt is bona fide disputed, there cannot be ‘neglect to pay? within the meaning of Section 434(1)(a) of the Companies Act, 1956 so that the deeming provision then does not come into play. Also, the moment there is a bona fide dispute, the debt is then not ‘due?. The High Court also correctly appreciates that whether the company is commercially solvent is one of the considerations in order to determine whether the company is able to pay its debts or not.29. Even on the facts of this case, the Winding up Petition alleges that the ultimatum to the Respondent company asserting that the Respondent company was legally obliged to purchase the requisite shares in accordance with the terms of the Letter of Undertaking was on 7 th January, 2013. By this date at the very latest, the cause of action for filing a petition under Section 433(e) certainly arose. Also, as has been correctly pointed out by Dr. Singhvi, the statutory notice given on 3 rd November, 2015 does not refer to any facts as to the commercial insolvency of La-Fin. The statutory notice only refers to the suit proceedings and attachment by the EOW which had taken place long before in December 2013. Factually, therefore, no basis is laid for the legal contentions argued before us by Shri Kaul.30. In the Winding up Petition itself, what is referred to is the fall in the assets of La-Fin to being worth approximately INR 200 crores as of October, 2016, which again does not correlate with 3 rd November, 2015, being the date on which the statutory notice was itself issued. This again is only for the purpose of appointing an Officer of the Court as Official Liquidator in order to manage the day-to-day affairs and otherwise secure and safeguard the assets of the Respondent company. There is no averment in the petition that thanks to these or other facts the Company?s substratum has disappeared, or that the Company is otherwise commercially insolvent. It is clear therefore that even on facts, the company?s substratum disappearing or the commercial insolvency of the company has not been pleaded. Whereas, in Form-1, upon transfer of the winding up proceedings to the NCLT, what is correctly stated is that the date of default is 19 th August, 2012; making it clear that three-years from that date had long since elapsed when the Winding up Petition under Section 433(e) was filed on 21 st October, 2016.
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is a proceeding ‘in rem? and not a recovery proceeding, the trigger of limitation, so far as the winding up petition is concerned, would be the date of default. Questions as to commercial solvency arise in cases covered by Sections 434(1) (c) of the Companies Act, 1956, where the debt has first to be proved, after which the Court will then look to the wishes of the other creditors and commercial solvency of the company as a whole. The stage at which the Court, therefore, examines whether the company is commercially insolvent is once it begins to hear the winding up petition for admission on merits. Limitation attaches insofar as petitions filed under Section 433(e) are concerned at the stage that default occurs for, it is at this stage that the debt becomes payable. For this reason, it is difficult to accept Shri Kaul?s submission that the cause of action for the purposes of limitation would include the commercial insolvency or the loss of substratum of the company.The Bombay High Court judgment referred to in paragraph 23 of the judgment above states the law on winding up petitions filed under Section 433(a) of the Companies Act, 1956 correctly. The primary test is set out in paragraph 1, which is that a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the Company. Absent such dispute, the petition may be admitted. Equally, where the debt is bona fide disputed, there cannot be ‘neglect to pay? within the meaning of Section 434(1)(a) of the Companies Act, 1956 so that the deeming provision then does not come into play. Also, the moment there is a bona fide dispute, the debt is then not ‘due?. The High Court also correctly appreciates that whether the company is commercially solvent is one of the considerations in order to determine whether the company is able to pay its debts or not.29. Even on the facts of this case, the Winding up Petition alleges that the ultimatum to the Respondent company asserting that the Respondent company was legally obliged to purchase the requisite shares in accordance with the terms of the Letter of Undertaking was on 7 th January, 2013. By this date at the very latest, the cause of action for filing a petition under Section 433(e) certainly arose. Also, as has been correctly pointed out by Dr. Singhvi, the statutory notice given on 3 rd November, 2015 does not refer to any facts as to the commercial insolvency of La-Fin. The statutory notice only refers to the suit proceedings and attachment by the EOW which had taken place long before in December 2013. Factually, therefore, no basis is laid for the legal contentions argued before us by Shri Kaul.30. In the Winding up Petition itself, what is referred to is the fall in the assets of La-Fin to being worth approximately INR 200 crores as of October, 2016, which again does not correlate with 3 rd November, 2015, being the date on which the statutory notice was itself issued. This again is only for the purpose of appointing an Officer of the Court as Official Liquidator in order to manage the day-to-day affairs and otherwise secure and safeguard the assets of the Respondent company. There is no averment in the petition that thanks to these or other facts the Company?s substratum has disappeared, or that the Company is otherwise commercially insolvent. It is clear therefore that even on facts, the company?s substratum disappearing or the commercial insolvency of the company has not been pleaded. Whereas, in Form-1, upon transfer of the winding up proceedings to the NCLT, what is correctly stated is that the date of default is 19 th August, 2012; making it clear that three-years from that date had long since elapsed when the Winding up Petition under Section 433(e) was filed on 21 st October, 2016.Having heard the learned Senior Counsel for the parties, it is important to first advert to this Court?s decision in B.K. Educational Services Pvt. Ltd. (supra) in which Section 238A of the Code was referred to, which states asLimitation.—The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, apply to the proceedings or appeals before the Adjudicating Authority, the National Company Law Appellate Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, as the case may38. This case is most apposite. As in the present case, and as is reflected in the Insolvency Law Committee Report of March, 2018, the legislature did not contemplate enabling a creditor who has allowed the period of limitation to set in to allow such delayed claims through the mechanism of the Code. The Code cannot be triggered in the year 2017 for a debt which was time- barred, say, in 1990, as that would lead to the absurd and extreme consequence of the Code being triggered by a stale or dead claim, leading to the drastic consequence of instant removal of the present Board of Directors of the corporate debtor permanently, and which may ultimately lead to liquidation and, therefore, corporate death. This being the case, the expression ?debt due? in the definition sections of the Code would obviously only refer to debts that are ?due and payable? in law, i.e., the debts that are not48. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. ?The right to sue?, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.?
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Lakshmichand Baijnath Vs. Commissioner of Income Tax, West Bengal | is concealed profits was reached by the Income-tax Officer and by the Appellate Assistant Commissioner by ignoring the very material evidence furnished by the proceedings book and that the Appellate Tribunal had erroneously refuse to receive the book in evidence. This contention raises two controversies : (i) Was the proceedings book which was produced before the Tribunal the book which was produced before the Income-tax Officer ? (ii) If it was were the minutes of the meeting prior to 21st April 1945, relied on by the appellant before the Income-tax Officer ? Whatever view one might be inclined to take on the former question, so far as the latter is concerned, it is perfectly plain that they were not. On 27th May 1947, the enquiry was held on both the petition under S. 15A and on the quantum of income assessable to tax under S. 23(3). Exhibit D is an extract from the order sheet of the Income-tax Officer - and it runs as follows :"Regarding credits amounting to Rs. 2,30,346-6-3 in the a/c. Udoyaram Bhaniram the representatives state that besides the evidence produced, which are noted below, they are not in a position to produce any further evidence.(i) Account books of the assessee containing the details of the amounts aggregating the aforesaid sum.(ii) Sale statements rendered by Chunilal Damani, copies at which have been filed.(iii) Broker of Chundal Damani containing entries for purchase of gold, sold by the assessee family along with Surajrattan Bagri the accountant of Chunilal Damani.(iv) Statement of Lakhmichand Bhiwaniwalia and Pannalal Bhiwaniwalla, member of the assessee family."This statement is signed by the counsel for the appellant. It is clear from the above that the proceedings book was not relied on as evidence on the character of the receipts making up the sum of Rs. 2,30,346. The fact appears to be that the appellant produced the proceedings book in support of his petition under S. 25A for the purpose of establishing that there was a completed partition, and relied only on the minutes of the meeting held on April 21, 1945, in proof thereof, and that is why that alone was translated in English and marked as Ex. B. It is also to be noted that there is no reference in the order of assessment by the Income-tax Officer under S. 23(3) to the minutes of the meetings prior to April 21, 1945, and that they were not even translated, as was the record of the meeting dated April 21, 1945. The obvious inference is that they were not relied on by the appellant, and were therefore not considered by the Officer. It is also significant that the order of the income-tax Officers refers to sale of ornaments broken or unbroken. The story that the gold which was separated from the jewels after removing the pearls and stones was melted and sold in quantities of 250 or 500 tolas, which was the argument pressed before us, was not put forward before him.9. It is argued that in the appeal against the order of the Income-tax Officer the ground was definitely taken that the proceedings book had been produced before him, and that it was also prominently mentioned in a petition supported by affidavit filed by the appellant. But the order of the Appellate Assistant Commissioner does not deal with this matter either, and it is inconceivable that he would have failed to consider it if it had been pressed before him. It is also to be noted that the appellant who had obtained a return of the proceedings book from the Income-tax Officer did not file it before the Appellate Assistant Commissioner, nor did he move for its admission in evidence. Apart from taking the grounds to which we were referred, the appellant appears in have presented his case before the Appellate Assistant Commissioner precisely on the same lines on which he pressed it before the Income-tax Officer. In view of these facts, we are unable to hold that in refusing to admit the proceedings book as evidence in the appeal, the Appellate Tribunal acted perversely or unreasonably. Indeed, counsel for the appellant did not contend, in the High Court that the Tribunal had acted illegally or unreasonably in refusing to admit the proceedings book in evidence. That being so, it cannot be said that the finding given by the Tribunal on an appreciation of the facts and circumstances already set out is unsupported by evidence or is perverse.10. The position may thus be summed up : In the business accounts of the appellant we find certain sums credited. The explanation given by the appellant as to how the amounts came to be received is rejected by all the Income-tax authorities as untenable. The credits are accordingly treated as business receipts which are chargeable to tax.In V. Govindarajulu Mudaliar v. Commissioner of Income-tax, Hyderabad, Civil Appeals Nos. 41 to 43 of 1957 D/- 24-9-1958 : (AIR 1959 S C 248) this Court observed :"There is ample authority for the position that where an assessee fails to prove satisfactorily the source and nature of certain amounts of cash received during the accounting year, the Income-tax Officer is entitled to draw the inference that the receipts are of an assessable nature.That is precisely what the Income-tax authorities have done in the present case, and we do not find any grounds for holding that their finding is open to attack as erroneous in law.11. (3) Lastly, the question was sought to be raised that even if the credits aggregating to Rs. 2,30,346 are held to be concealed income, no levy of excess profits tax can be made on them without a further finding that they represented business income, and that there is no such finding. When an amount is credited in business books, it is not an unreasonable inference to draw that it is a receipt from business. It is unnecessary to pursue this matter further, as this is not one of the questions referred under S. 66 (2). | 0[ds]10. The position may thus be summed up : In the business accounts of the appellant we find certain sums credited. The explanation given by the appellant as to how the amounts came to be received is rejected by all theauthorities as untenable. The credits are accordingly treated as business receipts which are chargeable to tax.In V. Govindarajulu Mudaliar v. Commissioner ofHyderabad, Civil Appeals Nos. 41 to 43 of 1957 D/: (AIR 1959 S C 248) this Court observedis ample authority for the position that where an assessee fails to prove satisfactorily the source and nature of certain amounts of cash received during the accounting year, theOfficer is entitled to draw the inference that the receipts are of an assessableis precisely what theauthorities have done in the present case, and we do not find any grounds for holding that their finding is open to attack as erroneous in law.11. (3) Lastly, the question was sought to be raised that even if the credits aggregating to Rs. 2,30,346 are held to be concealed income, no levy of excess profits tax can be made on them without a further finding that they represented business income, and that there is no such finding. When an amount is credited in business books, it is not an unreasonable inference to draw that it is a receipt from business. It is unnecessary to pursue this matter further, as this is not one of the questions referred under S. 66 (2). | 0 | 3,757 | 272 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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is concealed profits was reached by the Income-tax Officer and by the Appellate Assistant Commissioner by ignoring the very material evidence furnished by the proceedings book and that the Appellate Tribunal had erroneously refuse to receive the book in evidence. This contention raises two controversies : (i) Was the proceedings book which was produced before the Tribunal the book which was produced before the Income-tax Officer ? (ii) If it was were the minutes of the meeting prior to 21st April 1945, relied on by the appellant before the Income-tax Officer ? Whatever view one might be inclined to take on the former question, so far as the latter is concerned, it is perfectly plain that they were not. On 27th May 1947, the enquiry was held on both the petition under S. 15A and on the quantum of income assessable to tax under S. 23(3). Exhibit D is an extract from the order sheet of the Income-tax Officer - and it runs as follows :"Regarding credits amounting to Rs. 2,30,346-6-3 in the a/c. Udoyaram Bhaniram the representatives state that besides the evidence produced, which are noted below, they are not in a position to produce any further evidence.(i) Account books of the assessee containing the details of the amounts aggregating the aforesaid sum.(ii) Sale statements rendered by Chunilal Damani, copies at which have been filed.(iii) Broker of Chundal Damani containing entries for purchase of gold, sold by the assessee family along with Surajrattan Bagri the accountant of Chunilal Damani.(iv) Statement of Lakhmichand Bhiwaniwalia and Pannalal Bhiwaniwalla, member of the assessee family."This statement is signed by the counsel for the appellant. It is clear from the above that the proceedings book was not relied on as evidence on the character of the receipts making up the sum of Rs. 2,30,346. The fact appears to be that the appellant produced the proceedings book in support of his petition under S. 25A for the purpose of establishing that there was a completed partition, and relied only on the minutes of the meeting held on April 21, 1945, in proof thereof, and that is why that alone was translated in English and marked as Ex. B. It is also to be noted that there is no reference in the order of assessment by the Income-tax Officer under S. 23(3) to the minutes of the meetings prior to April 21, 1945, and that they were not even translated, as was the record of the meeting dated April 21, 1945. The obvious inference is that they were not relied on by the appellant, and were therefore not considered by the Officer. It is also significant that the order of the income-tax Officers refers to sale of ornaments broken or unbroken. The story that the gold which was separated from the jewels after removing the pearls and stones was melted and sold in quantities of 250 or 500 tolas, which was the argument pressed before us, was not put forward before him.9. It is argued that in the appeal against the order of the Income-tax Officer the ground was definitely taken that the proceedings book had been produced before him, and that it was also prominently mentioned in a petition supported by affidavit filed by the appellant. But the order of the Appellate Assistant Commissioner does not deal with this matter either, and it is inconceivable that he would have failed to consider it if it had been pressed before him. It is also to be noted that the appellant who had obtained a return of the proceedings book from the Income-tax Officer did not file it before the Appellate Assistant Commissioner, nor did he move for its admission in evidence. Apart from taking the grounds to which we were referred, the appellant appears in have presented his case before the Appellate Assistant Commissioner precisely on the same lines on which he pressed it before the Income-tax Officer. In view of these facts, we are unable to hold that in refusing to admit the proceedings book as evidence in the appeal, the Appellate Tribunal acted perversely or unreasonably. Indeed, counsel for the appellant did not contend, in the High Court that the Tribunal had acted illegally or unreasonably in refusing to admit the proceedings book in evidence. That being so, it cannot be said that the finding given by the Tribunal on an appreciation of the facts and circumstances already set out is unsupported by evidence or is perverse.10. The position may thus be summed up : In the business accounts of the appellant we find certain sums credited. The explanation given by the appellant as to how the amounts came to be received is rejected by all the Income-tax authorities as untenable. The credits are accordingly treated as business receipts which are chargeable to tax.In V. Govindarajulu Mudaliar v. Commissioner of Income-tax, Hyderabad, Civil Appeals Nos. 41 to 43 of 1957 D/- 24-9-1958 : (AIR 1959 S C 248) this Court observed :"There is ample authority for the position that where an assessee fails to prove satisfactorily the source and nature of certain amounts of cash received during the accounting year, the Income-tax Officer is entitled to draw the inference that the receipts are of an assessable nature.That is precisely what the Income-tax authorities have done in the present case, and we do not find any grounds for holding that their finding is open to attack as erroneous in law.11. (3) Lastly, the question was sought to be raised that even if the credits aggregating to Rs. 2,30,346 are held to be concealed income, no levy of excess profits tax can be made on them without a further finding that they represented business income, and that there is no such finding. When an amount is credited in business books, it is not an unreasonable inference to draw that it is a receipt from business. It is unnecessary to pursue this matter further, as this is not one of the questions referred under S. 66 (2).
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10. The position may thus be summed up : In the business accounts of the appellant we find certain sums credited. The explanation given by the appellant as to how the amounts came to be received is rejected by all theauthorities as untenable. The credits are accordingly treated as business receipts which are chargeable to tax.In V. Govindarajulu Mudaliar v. Commissioner ofHyderabad, Civil Appeals Nos. 41 to 43 of 1957 D/: (AIR 1959 S C 248) this Court observedis ample authority for the position that where an assessee fails to prove satisfactorily the source and nature of certain amounts of cash received during the accounting year, theOfficer is entitled to draw the inference that the receipts are of an assessableis precisely what theauthorities have done in the present case, and we do not find any grounds for holding that their finding is open to attack as erroneous in law.11. (3) Lastly, the question was sought to be raised that even if the credits aggregating to Rs. 2,30,346 are held to be concealed income, no levy of excess profits tax can be made on them without a further finding that they represented business income, and that there is no such finding. When an amount is credited in business books, it is not an unreasonable inference to draw that it is a receipt from business. It is unnecessary to pursue this matter further, as this is not one of the questions referred under S. 66 (2).
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Maharaja Pratap Singh Bahadur Vs. Thakur Manmohan Deo And Ors | question that remains in this context is whether it was executed by the Court of Wards. 10. Exhibit 1 purports to have been given in favour of Brown Wood, the then Deputy Commissioner of Santhal Pargana, on behalf of the Court of Wards representing the Rohini Ghatwali Estate for the purpose of erecting dwelling houses under Section 1 and 2 of Act V of 1859. The only flaw pointed out by the learned counsel is that there is nothing in the Act to indicate that a Deputy Commissioner can grant a lease of a Ghatwali land on behalf of the Court of Wards.But the document was ex facie executed by the Deputy Commissioner on behalf of the Court of Wards and the validity of it was not questioned till the suit was filed, that is for about 80 years. The lessee and his successors-in-interest have been in possession of the lands all these years. In such circumstances the presumption under S. 114 of the Indian Evidence Act can readily be drawn. Under that section;"The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." Under illustration (e) the Court may presume that judicial and official acts have been regularly performed. If an official act is proved to have been done, it will be presumed to have been regularly done. In this case it has been proved that the lease was executed on behalf of the Court of Wards and that the lessee and his successors have been in unquestioned enjoyment of the aid lands for many years. Indeed, the plaintiff in the plaints does not allege that the Deputy Commissioner was not legally authorised to act on behalf of the Court of Wards: his only objection is that the document was not countersigned by the Commissioner of Bhagalpur Division. But that condition was only applicable to a lease executed by a Ghatwal and not by the Court of Wards. In the circumstances, we think it is a fit case where the Court can reasonably presume that the Deputy Commissioner, under appropriate rules, was duly authorised to act on behalf of the Court of Wards. 11. Assuming that the conditions laid down in Act IV of 1870 should also complied with, we think the respondents are not in a better position. Under S. 9 of the Court of Wards Act, the Court of Wards can grant a lease for a term extending to 10 years or for a period beyond the expiration of the wards minority with the sanction of the Board of Revenue. Under S. 8 thereof, the Commissioner of Revenue of each division shall be the Court of Wards. Under S. 9, the Court of Wards is competent to manage estates and lands falling under its charge and one of the acts of management is to grant leases of lands. Under S. 13, when estates or lands of wards are situated within more than one district but within the same division, the Collector of each district shall exercise the duties of the Court of Wards with respect to the wards property situated within his district. A combined reading of these provisions indicates that the Collector can grant a lease of a property situate within his district, for, the grant of a lease of lands in his management is certainly an act of management. That he can do so is also implicit under the provisions of S. 9, for, under that section a lease granted by the Collector acting for the Court of Wards is valid beyond the prohibited period if it was made with the sanction of the Board of Revenue. On a fair reading of the provisions of the Act we have come to the conclusion that the Collector could grant a lease is perpetuity with the sanction of the Board of Revenue. 12. The only questions now is whether such a sanction was given by the Board of Revenue. The kabuliat indicates ex facie that the lease was granted in perpetuity by the Deputy Commissioner on behalf of the Court of Wards. It is not disputed that the expressions "Deputy Commissioner" and "Collector" are synonymous. The same officer is called by both the names and he discharges the same functions. The land covered by the lease has been in possession and enjoyment of the lessee for about 80 years. The validity of the said grant was not questioned all these long years. Even in the plaint its validity was not challenged on the ground that the sanction of the Board of Revenue was not given. For the reasons mentioned by us in the context of Act V of 1859, in our view, this is a fit case where we can reasonably presume that when the lease was granted all the statutory requirements were complied with, that is to say the Board of Revenue gave its sanction. For the aforesaid reasons we hold that the lease of 1873 was valid and binding on the plaintiff. 13. Now coming to C Schedule lands, the position is simple. It was concurrently held by the Courts below that the C Schedule property was not the subject-matter of the lease. The title to the property, therefore, clearly vested in the plaintiff. It is also found by the lower Courts that the said property is a waste land in regard to which there can be no effective enjoyment. The High Court, therefore, rightly drew the presumption that possession followed title. 14. In this view the question of limitation raised by the appellant does not call for a decision, for in the case of the A Schedule property the 2nd respondent loses on the question of title and regard to the C. Schedule property he will be presumed to be in possession. In either view, the question of limitation does not arise. | 1[ds]A comparative study of these two Acts discloses that Act V of 1959 is a special Act dealing with a specific subject-matter, namely, Ghatwali lands in the district of Birbhoom: it also provides for a particular incident of the tenure, namely, the power to lease the said lands. It says that a Ghatwal holding land shall have the same power of granting leases as is allowed by law to the proprietors of other lands. The proviso thereto enacts that a lease of a Ghatwali land for a period extending beyond the lifetime of the grantor is not binding on the successors unless the same was granted for the purposes specified therein with the approval of the Commissioner signified in the manner prescribed thereunder. But S. 2 thereof provides that in the case of a Ghatwali land under the superintendence of the Court of Wards, it shall be lawful to the Court of Wards or the Commissioner to grant leases of the same for any of the purposes mentioned in the proviso thereto. In that event, such leases shall be binding on the future possessors of the said land. It is, therefore, manifest from the said sections that a Court of Wards could grant a lease of a Ghatwali land for erecting dwelling houses so as to be binding on the future possessors of the said land. The Court of Wards Act deals generally with the management of all the estates that come under the superintendence of the Court of Wards and in respect of lands in such estates, the Court of Wards can grant a lease of the same for a term exceeding 10 years or beyond the period of expiration of the wards minority only with the sanction of the Board of Revenue8. It is, therefore, clear that Act V of 1859 is a special statute and Act IV of 1870 is a general statute. The special statute does not make the sanction of the Board of Revenue a pre-condition for the validity of the lease executed by a Court of Wards so as to bind all future possessors of the said land, whereas S. 9 of Act V of 1859 imposes such a condition. The argument is that both the Acts should be read together and, if so read, the sanction of the Board of Revenue would also be a pre-condition in addition to the conditions imposed under the proviso to S. 1 of Act V of 1859. In our view, such a contention is untenable. The principle of law in this regard is well settledIf this principle is applicable to the instant case-we do not see any reason why it is not-the special provisions made under Act V of 1859 in regard to the conditions imposed for the validity of such a lease should prevail over those imposed under the general Act, Act IV of 1870.The general Act in regard to leases of Ghatwali lands should yield to the special Act. On this construction, the condition for the validity of the lease in question is that it should have been executed by the Court of Wards for the purpose of erection of dwelling houses. The lease of 1873 expressly states that the lease was granted for erecting dwelling housesIn this case it has been proved that the lease was executed on behalf of the Court of Wards and that the lessee and his successors have been in unquestioned enjoyment of the aid lands for many years. Indeed, the plaintiff in the plaints does not allege that the Deputy Commissioner was not legally authorised to act on behalf of the Court of Wards: his only objection is that the document was not countersigned by the Commissioner of Bhagalpur Division. But that condition was only applicable to a lease executed by a Ghatwal and not by the Court of Wards. In the circumstances, we think it is a fit case where the Court can reasonably presume that the Deputy Commissioner, under appropriate rules, was duly authorised to act on behalf of the Court of Wards11. Assuming that the conditions laid down in Act IV of 1870 should also complied with, we think the respondents are not in a better position. Under S. 9 of the Court of Wards Act, the Court of Wards can grant a lease for a term extending to 10 years or for a period beyond the expiration of the wards minority with the sanction of the Board of Revenue. Under S. 8 thereof, the Commissioner of Revenue of each division shall be the Court of Wards. Under S. 9, the Court of Wards is competent to manage estates and lands falling under its charge and one of the acts of management is to grant leases of lands. Under S. 13, when estates or lands of wards are situated within more than one district but within the same division, the Collector of each district shall exercise the duties of the Court of Wards with respect to the wards property situated within his district. A combined reading of these provisions indicates that the Collector can grant a lease of a property situate within his district, for, the grant of a lease of lands in his management is certainly an act of management. That he can do so is also implicit under the provisions of S. 9, for, under that section a lease granted by the Collector acting for the Court of Wards is valid beyond the prohibited period if it was made with the sanction of the Board of Revenue. On a fair reading of the provisions of the Act we have come to the conclusion that the Collector could grant a lease is perpetuity with the sanction of the Board of RevenueThe kabuliat indicates ex facie that the lease was granted in perpetuity by the Deputy Commissioner on behalf of the Court of Wards. It is not disputed that the expressions "Deputy Commissioner" and "Collector" are synonymous. The same officer is called by both the names and he discharges the same functions. The land covered by the lease has been in possession and enjoyment of the lessee for about 80 years. The validity of the said grant was not questioned all these long years. Even in the plaint its validity was not challenged on the ground that the sanction of the Board of Revenue was not given. For the reasons mentioned by us in the context of Act V of 1859, in our view, this is a fit case where we can reasonably presume that when the lease was granted all the statutory requirements were complied with, that is to say the Board of Revenue gave its sanction. For the aforesaid reasons we hold that the lease of 1873 was valid and binding on the plaintiff13. Now coming to C Schedule lands, the position is simple. It was concurrently held by the Courts below that the C Schedule property was not the subject-matter of the lease. The title to the property, therefore, clearly vested in the plaintiff. It is also found by the lower Courts that the said property is a waste land in regard to which there can be no effective enjoyment. The High Court, therefore, rightly drew the presumption that possession followed title14. In this view the question of limitation raised by the appellant does not call for a decision, for in the case of the A Schedule property the 2nd respondent loses on the question of title and regard to the C. Schedule property he will be presumed to be in possession. In either view, the question of limitation does not arise. | 1 | 3,874 | 1,359 | ### Instruction:
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question that remains in this context is whether it was executed by the Court of Wards. 10. Exhibit 1 purports to have been given in favour of Brown Wood, the then Deputy Commissioner of Santhal Pargana, on behalf of the Court of Wards representing the Rohini Ghatwali Estate for the purpose of erecting dwelling houses under Section 1 and 2 of Act V of 1859. The only flaw pointed out by the learned counsel is that there is nothing in the Act to indicate that a Deputy Commissioner can grant a lease of a Ghatwali land on behalf of the Court of Wards.But the document was ex facie executed by the Deputy Commissioner on behalf of the Court of Wards and the validity of it was not questioned till the suit was filed, that is for about 80 years. The lessee and his successors-in-interest have been in possession of the lands all these years. In such circumstances the presumption under S. 114 of the Indian Evidence Act can readily be drawn. Under that section;"The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." Under illustration (e) the Court may presume that judicial and official acts have been regularly performed. If an official act is proved to have been done, it will be presumed to have been regularly done. In this case it has been proved that the lease was executed on behalf of the Court of Wards and that the lessee and his successors have been in unquestioned enjoyment of the aid lands for many years. Indeed, the plaintiff in the plaints does not allege that the Deputy Commissioner was not legally authorised to act on behalf of the Court of Wards: his only objection is that the document was not countersigned by the Commissioner of Bhagalpur Division. But that condition was only applicable to a lease executed by a Ghatwal and not by the Court of Wards. In the circumstances, we think it is a fit case where the Court can reasonably presume that the Deputy Commissioner, under appropriate rules, was duly authorised to act on behalf of the Court of Wards. 11. Assuming that the conditions laid down in Act IV of 1870 should also complied with, we think the respondents are not in a better position. Under S. 9 of the Court of Wards Act, the Court of Wards can grant a lease for a term extending to 10 years or for a period beyond the expiration of the wards minority with the sanction of the Board of Revenue. Under S. 8 thereof, the Commissioner of Revenue of each division shall be the Court of Wards. Under S. 9, the Court of Wards is competent to manage estates and lands falling under its charge and one of the acts of management is to grant leases of lands. Under S. 13, when estates or lands of wards are situated within more than one district but within the same division, the Collector of each district shall exercise the duties of the Court of Wards with respect to the wards property situated within his district. A combined reading of these provisions indicates that the Collector can grant a lease of a property situate within his district, for, the grant of a lease of lands in his management is certainly an act of management. That he can do so is also implicit under the provisions of S. 9, for, under that section a lease granted by the Collector acting for the Court of Wards is valid beyond the prohibited period if it was made with the sanction of the Board of Revenue. On a fair reading of the provisions of the Act we have come to the conclusion that the Collector could grant a lease is perpetuity with the sanction of the Board of Revenue. 12. The only questions now is whether such a sanction was given by the Board of Revenue. The kabuliat indicates ex facie that the lease was granted in perpetuity by the Deputy Commissioner on behalf of the Court of Wards. It is not disputed that the expressions "Deputy Commissioner" and "Collector" are synonymous. The same officer is called by both the names and he discharges the same functions. The land covered by the lease has been in possession and enjoyment of the lessee for about 80 years. The validity of the said grant was not questioned all these long years. Even in the plaint its validity was not challenged on the ground that the sanction of the Board of Revenue was not given. For the reasons mentioned by us in the context of Act V of 1859, in our view, this is a fit case where we can reasonably presume that when the lease was granted all the statutory requirements were complied with, that is to say the Board of Revenue gave its sanction. For the aforesaid reasons we hold that the lease of 1873 was valid and binding on the plaintiff. 13. Now coming to C Schedule lands, the position is simple. It was concurrently held by the Courts below that the C Schedule property was not the subject-matter of the lease. The title to the property, therefore, clearly vested in the plaintiff. It is also found by the lower Courts that the said property is a waste land in regard to which there can be no effective enjoyment. The High Court, therefore, rightly drew the presumption that possession followed title. 14. In this view the question of limitation raised by the appellant does not call for a decision, for in the case of the A Schedule property the 2nd respondent loses on the question of title and regard to the C. Schedule property he will be presumed to be in possession. In either view, the question of limitation does not arise.
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for a term exceeding 10 years or beyond the period of expiration of the wards minority only with the sanction of the Board of Revenue8. It is, therefore, clear that Act V of 1859 is a special statute and Act IV of 1870 is a general statute. The special statute does not make the sanction of the Board of Revenue a pre-condition for the validity of the lease executed by a Court of Wards so as to bind all future possessors of the said land, whereas S. 9 of Act V of 1859 imposes such a condition. The argument is that both the Acts should be read together and, if so read, the sanction of the Board of Revenue would also be a pre-condition in addition to the conditions imposed under the proviso to S. 1 of Act V of 1859. In our view, such a contention is untenable. The principle of law in this regard is well settledIf this principle is applicable to the instant case-we do not see any reason why it is not-the special provisions made under Act V of 1859 in regard to the conditions imposed for the validity of such a lease should prevail over those imposed under the general Act, Act IV of 1870.The general Act in regard to leases of Ghatwali lands should yield to the special Act. On this construction, the condition for the validity of the lease in question is that it should have been executed by the Court of Wards for the purpose of erection of dwelling houses. The lease of 1873 expressly states that the lease was granted for erecting dwelling housesIn this case it has been proved that the lease was executed on behalf of the Court of Wards and that the lessee and his successors have been in unquestioned enjoyment of the aid lands for many years. Indeed, the plaintiff in the plaints does not allege that the Deputy Commissioner was not legally authorised to act on behalf of the Court of Wards: his only objection is that the document was not countersigned by the Commissioner of Bhagalpur Division. But that condition was only applicable to a lease executed by a Ghatwal and not by the Court of Wards. In the circumstances, we think it is a fit case where the Court can reasonably presume that the Deputy Commissioner, under appropriate rules, was duly authorised to act on behalf of the Court of Wards11. Assuming that the conditions laid down in Act IV of 1870 should also complied with, we think the respondents are not in a better position. Under S. 9 of the Court of Wards Act, the Court of Wards can grant a lease for a term extending to 10 years or for a period beyond the expiration of the wards minority with the sanction of the Board of Revenue. Under S. 8 thereof, the Commissioner of Revenue of each division shall be the Court of Wards. Under S. 9, the Court of Wards is competent to manage estates and lands falling under its charge and one of the acts of management is to grant leases of lands. Under S. 13, when estates or lands of wards are situated within more than one district but within the same division, the Collector of each district shall exercise the duties of the Court of Wards with respect to the wards property situated within his district. A combined reading of these provisions indicates that the Collector can grant a lease of a property situate within his district, for, the grant of a lease of lands in his management is certainly an act of management. That he can do so is also implicit under the provisions of S. 9, for, under that section a lease granted by the Collector acting for the Court of Wards is valid beyond the prohibited period if it was made with the sanction of the Board of Revenue. On a fair reading of the provisions of the Act we have come to the conclusion that the Collector could grant a lease is perpetuity with the sanction of the Board of RevenueThe kabuliat indicates ex facie that the lease was granted in perpetuity by the Deputy Commissioner on behalf of the Court of Wards. It is not disputed that the expressions "Deputy Commissioner" and "Collector" are synonymous. The same officer is called by both the names and he discharges the same functions. The land covered by the lease has been in possession and enjoyment of the lessee for about 80 years. The validity of the said grant was not questioned all these long years. Even in the plaint its validity was not challenged on the ground that the sanction of the Board of Revenue was not given. For the reasons mentioned by us in the context of Act V of 1859, in our view, this is a fit case where we can reasonably presume that when the lease was granted all the statutory requirements were complied with, that is to say the Board of Revenue gave its sanction. For the aforesaid reasons we hold that the lease of 1873 was valid and binding on the plaintiff13. Now coming to C Schedule lands, the position is simple. It was concurrently held by the Courts below that the C Schedule property was not the subject-matter of the lease. The title to the property, therefore, clearly vested in the plaintiff. It is also found by the lower Courts that the said property is a waste land in regard to which there can be no effective enjoyment. The High Court, therefore, rightly drew the presumption that possession followed title14. In this view the question of limitation raised by the appellant does not call for a decision, for in the case of the A Schedule property the 2nd respondent loses on the question of title and regard to the C. Schedule property he will be presumed to be in possession. In either view, the question of limitation does not arise.
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Prabhakar Gones Prabhu Navelkar through L.Rs. and Ors Vs. Saradchandra Suria Prabhu Navelkar through L.Rs. and Ors | our view has resulted in a decision which is otherwise just. In Taherakhatoon (D) by LRs v. Salambin Mohammad 1999(2) SCC 635 , it has been held that even after the grant of special leave in an appeal this Court is not bound to interfere. This Court inter alia held as follows: "15. It is now well settled that though special leave is granted, the iscretionary power which vested in the Court at the stage of the special leave petition continues to remain with the Court even at the stage when the appeal comes up for hearing and when both sides are heard on merits in the appeal. This principle is applicable to all kinds of appeals admitted by special leave under Article 136, irrespective of the nature of the subject-matter. It was so laid down by a Constitution Bench of five learned Judges of this Court in Pritam Singh v. State [AIR 1950 SC 169 : 1950 SCR 453 ]. In that case, it was argued for the appellant that once special leave was granted and the matter was registered as an appeal, the case should be disposed of on merits on all points and that the discretionary power available at the stage of grant of special leave was not available when the appeal was being heard on merits. 16. This Court rejected the said contention and referred to the following dicta of the Privy Council in Ibrahim v. R. [AIR 1914 PC 155] :?[T]he Board had repeatedly treated applications for leave to appeal and the hearing of criminal appeals as being upon the same footing: Reil case [Riel v. R., (1885) 10 AC 675 : 58 LJPC 28] ; Deeming, ex p [1892 AC 422 : 8 TLR 577]. The Board cannot give leave to appeal where the grounds suggested could not sustain the appeal itself; and conversely, it cannot allow an appeal on grounds that would not have sufficed for the grant of permission to bring it.? This Court observed that the rule laid down by the Privy Council is based on sound principle and only those points could be urged at the final hearing of the appeal which were fit to be urged at the preliminary stage when leave to appeal was asked for and it would be illogical to adopt different standards at two different stages of the same case. This Court observed (para 8) that, so far as Article 136 was concerned, it was to be noted firstly that it was very general and was not confined merely to criminal cases, and that (see para 9), the wide discretionary power with which the Court was concerned was applicable to all types of cases. The power under Article 136 according to this Court,?is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article. By virtue of this article, we can grant special leave in civil cases, in criminal cases, in income tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases?. (emphasis supplied) This Court emphasised:?The only uniform standard which in our opinion can be laid down in the circumstances is that Court should grant special leave to appeal in those cases where special circumstances are shown to exist.? This Court then concluded:?Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.? 20. In view of the above decisions, even though we are now dealing with the appeal after grant of special leave, we are not bound to go into merits and even if we do so and declare the law or point out the error — still we may not interfere if the justice of the case on facts does not require interference or if we feel that the relief could be moulded in a different fashion... ? (emphasis supplied) In this case, as we have noticed apart from 22.5 hectares in property ‘M? which was obtained by gift deed executed by grandfather in favour of Gones, in 1925. Gones acquired another gift by Suriaji?s wife 22.5 hectares of land in property ‘M?. As we have noticed there was 91 hectares in property ‘M? and nearly 31 hectares as property ‘B?. Thus Gones got 45 hectares approximately as a result of the gift deeds of 1913 and 1925. The case of the appellant is based on the settlement deed of 1919, no doubt read with sale deed of 1915. If instead of Gift deed of 1925 and Suriaji had to strictly confirm to the deed of 1919 as appellants contended Suriaji would have had to transfer only 19 hectares it would be a little more than 11 hectares from property ‘M? and a little more than 7 hectares from property ‘B? but the grand total would have been only 19 hectares. Gones in other words would have got 19 hectares but admittedly Suriaji has gifted Gones 1/4 share in property ‘M? in 1925 which translated to about 22.5 hectares. Thus he was given almost more than 3 hectares than he would have got if the settlement deed of 1919 was enforced. If the suit is decreed in this case, the result would be that Gones would stand allotted a little more than 64 hectares whereas the branch of Suriaji would have to rest content with just 19 hectares. This fact as also the fact the Gones during his whole lifetime and it be remembered that Gones died only in 1978 did not raise his little finger against the exclusive right being given to his brother?s family dissuades us at any rate from interfering in this matter. | 0[ds]37. Parties cannot go beyond their pleadings, runs another argument on behalf of the respondents. This is in context of the argument of the appellant that Shantibai (wife of Suriaji) continued to hold the property in trust for Gones.As we have noticed in the beginning of our judgment, property ‘M? consisted of about 90 hectares whereas property ‘B? consisted of about 31 hectares. By the Gift Deed of 1913, the grandfather of Suriaji and Gones had gifted one-half right in property ‘M? to both Suriaji and Gones. Thereafter, the one-half share in property ‘M? and the whole of property ‘B? came to vest with the aunt (father?s sister) of Suriaji and Gones. It is in 1915 that the aunt along with her husband executed the sale deed conveying the rights to Suriaji and to the other branch, viz., Vitol. Thereafter, in 1919, the deed of dissolution, which is the sheet anchor of the appellant?s case came to be executed. It is thereunder that acknowledgment of title, as contended by the appellants, of Gones over the property, which his subject matter of the sale in favour of Suriaji, is made.Still further, in 1925, Suriaji along with wife, executed a Gift Deed. Under the same, the donors have gifted the rights obtained by Suriaji under the Gift Deed executed in his favour under the document of 1913 by his grandfather. There is no dispute that in 1937 the rights of Gones as acquired under the Gift Deed executed in his favour by his grandfather in 1913 and also the property acquired by him under the Gift Deed by his brother and sister-in-law in 1925 came to be sold in auction in execution of decree obtained against Gones. The present suit is filed based on the sale deed executed by the paternal aunt of Gones and her husband expressly in favour of Suriaji and his wife and the otherentire case of appellants is based on right in the plaint schedule property, based in turn on the right which Gones acquired under the sale deed dated 17.1.1915. Under the sale deed dated 17.1.1915, 1/4 th share of property ‘B? and 1/2 right in property ‘M? came to be conveyed to Suriaji, the other part being conveyed to the Vitol branch. It is undisputed that Gones does not figure as a transferee in the sale deed. There is nothing left to even construe as there is not even a whisper of the name of Gones in the sale deed dated 17.1.1915. It is a case of outright sale of share of property as we have mentioned in favour of the named transferees. It is 4 years thereafter however that document dated 21.1.1919 styled as a dissolution deed is executed which contains the controversial clause which we have already sethave already referred to the law laid down by this Court in regard to Order XLI Rule 22 of the Code of Civil Procedure. In an appeal if the respondent does not want any change in the decree of the lower court, it is not necessary for him to file an appeal or cross objection to merely support the decree already passed without any variation in the decree but by challenging the correctness of the findings in the judgment. The appellants are correct in contending that if a challenge is made to a decree by a respondent then necessarily the respondent must file either an appeal or a cross objection. In this case however, the suit filed by the appellants stood dismissed by the first appellate court. The two appeals which were carried by the appellant before the High Court were dismissed. Resultantly, the decree of the first appellate Court dismissing the suit came to be confirmed. Before this Court the respondents are not seeking to challenge the decree. They do not wish any variation of the decree. They seek to have the decree confirmed. They support the decree entirely. The decree is one dismissing the suit. They are only seeking to support the said decree by challenging one of the findings namely the finding relating to title. For doing the same, it is not necessary for them to file an appeal or cross objection as by having the finding overturned in regard to title they are not seeking to have a different decree passed in any manner. Hence we reject the contention of the appellants that it is not open to the respondents to contest the finding on title without filing cross57. We have set out two broad findings by the High Court. The first relates to the question whether Gones had acquired any right. The second part relates to whether he has lost the right. The High court finds that Gones indeed had a right but he has lost it and the right should have been enforced latest byto the first part namely whether Gones had a right the most important part is finding that Suriaji admitted that 1/8 of ‘M? and 1/4 of ‘B? was purchased by him for Gones.The case of the appellants appears to be that when 1/2 of the price was paid by Gones in terms of the acknowledgement contained in the document of 1919, all that remained to be paid was 1000 rupees for reimbursing Suriaji having paid the amount to Laxmi towards dowry. There can be no dispute that the sale deed does not show Gones as adocument dated 21.1.2019 is described as a deed of declaration, fixation of balance of accounts, payment and obligation. Parties of the first part are described as Suriaji and his wife Shantibai aged 15 and minor aged 16. Gones is shown as aged 14 years assisted by his mother. Parties on the second part are described as Laxmi, widow of vitol (the other party) and her sons etc. The deed appears to provide for distribution of joint family and for settlement of accounts of the family which lasted only 3 years. It is inter alia stated further that the parties of the first part owed to the parties to the second part a sum of Rs.2000/-. It is inter alia stated therein that parties of the first part Suriaji stated that the purchase made by him by the sale deed dated 17.11.1915 was made for himself and for the party of the first part Gones, his brother and that he has paid for half of the price of the said purchase, therefore he undertakes alongwith the said Shantibai to transfer in the name of said Gones the half of the properties purchased in his name by the aforesaid deed at any time he may desire, to have it transferred and on the occasion of this transfer, the said Gones will have to indemnify him with half of the amount which has now been paid to the party of the second part Laxmi from the money of the dowry of his wife. It is the aforesaid provision which is at the heart of the controversy. We are to unravel its true scope and import.There is no denial of the averment of Gones having paid the consideration. We would think that it would be a safe conclusion to reach that consideration was partly paid for at least on behalf of Gones. Case of the respondents that no part of the consideration moved from or on behalf of Gones in regard to the sale deed dated 17.11.1915 cannot beview we have taken finds reinforcement from the words that follow immediately in the sale deed 21.1.1919. It is stated immediately after stating that he has paid for half of the price for the said purchase, therefore, he has undertaken alongwith the said Shantibai to transfer to Gones, the half of the properties purchased in his name etc. In this behalf the word being in conjunction with his wife Shantibai can only refer to Suriaji. Therefore, the interpretation would be assale deed dated 17.11.1915 was executed in respect of 1/4 th of property ‘M? and 1/2 of property ‘B? in favour of Suriaji. Another 1/4 th of property ‘M? and other half of property ‘B? was sold under the sale deed to the other branch represented by Laxmi Bai. It is obvious that under the sale deed for his share, Gones would have made part of the payment. What is acknowledged in the dissolution deed is that 1/2 of the said consideration emanated fromquestion is what is the nature of theright, if any, which is acquired by Gones on the basis of the undertaking recorded in the document dated 21.1.1919 that Suriaji and his wife Shantibai will transfer in the name of Gones the half of the properties purchased in his name at any time he may desire to have it transferred and further that on the occasion of the transfer Gones will have to indemnify him with half the amount which has been paid the party of the second part, namely, Laxmi bai who represented the other branch in Navalkar family. The undertaking to transfer in the name of Gones, the half of the property is according to the appellants only transfer of mutation. On the other hand, according to the respondents it involved a transfer accompanied by registration. In conjunction with the same, the further question is of the meaning of the words ?that on the said occasion? that is when the transfer is effected Gones will have to indemnify the Suriaji with half the amount which stood paid to Laxmi from the dowry amount of Suriaji?s Wife. We cannot be oblivious to the fact that a sum of Rs.1000/- was a considerable sum of money in 1919. It is not to be confused with Rs.1000/- as on the date of the suit much less as of today. It was not meant to be a empty formality. We are unable to subscribe to the reasoning of the High Court when it holds that it is not a condition precedent. The payment was to coincide with transfer. No doubt it could have been made prior to demanding the transfer. We cannot understand the clause as meaning as either it need not be paid or the payment could bedo not see any such case at all. When the appellants are seeking the right solely based on the recital in the deed of dissolution dated 21.1.1919 we fail to see how when complying with the condition for seeking transfer it could be maintained by them that they are entitled without anything more to rights as co-owners. In fact, there is no case that the appellants have paid or offered the amount to the successors-in- interest of Suriaji. As already noticed, PW 1 goes to the extent of deposing that the ‘obligation to reimburse Suriaji did not devolve upon the heirs of Gones?. Thus the suit is filed with neither Gones nor even the appellants paying or even offering to pay the sum mentioned in the deed of 1919.We would also have a look at it from another perspective. In the plaint, at para ‘9?, what is stated is in the year 1915, Piru and her husband sold the property by deed of sale dated 17.11.1915 in equal parts to Suriaji and to Laxmi. Thereafter, in para ‘11?, Suriaji in the deed dated 21.01.1919 is stated to have expressly admitted that the purchase of 1/4 th of ?M? and 1/2 of ?B? made under sale deed dated 17.11.1915, was for himself and his younger brother and who paid its price at the time of pur- chase and therefore, it was undertaken to transfer the registration, upon Suriaji being reimbursed by Gones in the payment ofis admitted that the sale deed is in favour of Suriaji. It is nearly 4 years thereafter in the docu- ment of 1919 that the admission by Suriaji about 1/2 price, being paid and about the undertaking is setup. There is no case for the appellants in the plaint that Suriaji was benamidar or a name lender. The principle of resulting trust underlies Section 82 of the Trust Act. There can be no doubt that Trust Act was inapplicable to Goa in 1915 and in 1919 as Goa was not part of British India. Certain tests are propounded in determining whether a transaction is benami which have to be fulfilled. No doubt, the most important test is who provided consideration. There is no pleading in the plaint about the transac- tion being a benami transaction. If benami was rec- ognized in Goa under Portuguese rule then it could be said that Gones would become the owner provided the transaction is treated as a benami transaction. But there is no case of benami set up.The law of trust, as such, did not apply to Goa under the Portuguese Rule. At least the appellants have no case that it did apply. They have not produced anything to show that it applied. If the Trust Act which, undoubtedly, did not apply to Goa in 1915 or even in 1919 and in Section 82 thereof, lay embedded the principle of benami or resulting trust, how can appellant claim that Gones became entitled as owner under the document of 1915 read with the document of 1919. If it was reduced to a contract executory in nature, to perform an obligation upon which alone the title would vest, it was subject to the condition precedent of payment of Rs. 1000/- by Gones. Even according to the appellants obligation to pay Rs. 1000/-, did not pass to them. This conduct of the appellant?s, in seeking to derive rights under the document of 1919, even though, their predecessor in interest has failed either deliberately or otherwise to perform his obligation during his entire life time cannot be approvedtransferee in name or Benamidar would hold the property in trust for the person who has actually provided consideration. There is, we reiterate no case based on benami ever set up by thewe would come to the conclusion that by sale deed of 1915 and the settlement deed of 1919 it may not be safe to conclude that Gones acquired title as such in the plaint schedule property. In the light of this, we need not render any finding as regards adverse possession or ouster.It is worthwhile to note that after dissolution deed dated 21.1.1919 there took place, another development in the form of execution of gift deed by Suriaji in the year 1925. The case which the defendants had set up about gift deed include the allegation which tends to question the circumstances surrounding the execution of the gift deed. They have a case also that the gift deed was executed pursuant to the acknowledgment in the 1919 document. Before this Court respondents would seek to take advantage of it inasmuch as the contention is taken that the gift deed must be treated as executed in fulfilment of acknowledgment in the dissolution deed dated 21.1.1919. Under the gift deed of 1925 Suriaji has gifted Gones his ¼ right in property ‘M? which he acquired under the gift deed executed by his grandfather in the year 1913. Be it remembered that in 1913, the grandfather has also executed gift of another ¼ of property ‘M? in favour of Gones. Property ‘M? consisted of roughly 90 hectares. Thus, under both the gift deeds together 1/2 of property ‘M? or 45 hectares approximately came to be vested with Gones in the year 1925. Suriaji passed away in the year 1925 after the gift. It is thereafter that inventory proceedings took place in regard to the properties of Suriaji under the Portuguese Civil Code. Gones stood as vogal apparently on behalf of the minor children of Suriaji under the Portugues Civil Code. The documentary evidence is found by the first appellate Court to establish that ¼ of property ‘M? and ½ of property ‘B? stood allotted in the name of Shantibai, the widow of the Suriaji. This is borne out by the inscription which we have referred to of the year 1937. It is here that the question arises as to correctness of the findings that having participated in the inventory proceedings which culminated in the property being allotted to the Shantibai, the rights of Gones stood extinguished.We will proceed on the basis that interpretation of clause of the dissolution deed leads us to hold that Gones having paid ½ of the purchase price what is contemplated by the undertaking was that Suriaji and his wife Shantibai were to transfer the mutation. Gones acquired title in the property. We proceed further on the basis that payment of Rs.1000/- was not a condition precedent as found by the HighHigh Court finds that having acquiesced in the inventory proceedings Gones and his heirs are estopped from opening of succession after about two decades. It is further found that whatever right and interest may have survived with Gones was lost as he did not challenge the allotment of property to the Shantibai. The High court has therefore employed the principle of acquiescence, estoppel and loss of right.Therefore, we would hold that a when vested right is established such as ownership it can be divested only by sale or gift. It will not be possible to hold that mere laches or standing by itself may be sufficient to extinguish title. The majority view is Mulchand (supra) appears to suggest that there must either be abandonment or estoppel. Justice Vivian Bose takes the view that title can be lost only when estoppel is established. Merely saying that a person has abandoned his property does not lead to extinguishing of vested right such as right to ownership in property. Certainly, an abandonment which amounts to an estoppel would result in stopping a party or his representative from seeking legal redress or setting up the claim in a court of law.In the facts of this case there is an added feature. Under the document dated 21.1.1919 Gones was to make a reimbursement of Rs.1000/- as it turns out being half the amount paid by his brother Suriaji from out of the proceeds of his wife?s dowry to Laxmi who represented the other branch. Something remained to be done on the part of Gones and thereupon it was for Suriaji to transfer. In that sense it could be described as an executory contract. Even proceeding on the basis that it is understood that Gones has 1/2 right of over the rights, transferred in favour of Suriaji under the sale deed dated 17.11.1915, the question arises what is the effect of the inventory proceedings of which Gones was certainly aware of and admittedly he was a vogal.In regard to the inventory proceedings, no doubt, it is true that the inventory proceedings per se are not produced. The plea relating to inventory proceedings are undoubtedly taken by the contesting respondents. It may be true that burden of adducing evidence relating to inventory proceeding was on the contesting defendants but it is equally true that they have produced final inscription which manifest the culmination of the inventory proceedings and shows that plaint schedule property stood allotted to Shantibai.It is true that under the sale deed dated 17.11.1915 Suriaji was a transferee of 1/4 share of property ‘M? and 1/2 in property ‘B?. When Suriaji died, the inventory proceedings was to be held only in respect of the properties left behind by him.In regard to the aforesaid contentions when we are dealing with the case with the perspective of acquiescence, abandonment and estoppel we come to the following conclusions. Gones was himself a major, by the time inventory proceedings commenced and culminated. He was aware of his rights under the sale deed of 1915 as declared in the dissolution deed of 1919. We must proceed on the basis that the inventory proceedings culminated with ¼ right in ‘M? and 1/2 in ‘B? being allotted to Shantibai. As to how the said property came to be so allotted despite the settlement deed of 1919 which according to the appellants carved out rights in favour of Gones and towards ½ of the properties ‘B? to the appellants is a matter which this Court is unable to embark upon but it is clear that Shantibai stood allotted the property in tune with the sale deed.What is important is nothing is produced by the appellants to show that Gones protested in any manner either during or at the end of proceedings. Nothing is produced to show that allotment to Shantibai was ever challenged in any manner by Gones. In other words, Gones by his conduct must be treated as having held that he has accepted that the property which was allotted in the inventory proceedings will belong to Shantibai. Since 1937 when the said allotment took place for all purpose, the property stood acknowledged by Gones as property allotted to Shantibai. We are unable to accept the case that it would amount to fraud. There is no case of fraud as such set up by the appellants. There is a definite case for the respondents that there is no concept of trust in the Portuguese law and that there is no distinction between legal and equitable estate. We have taken the view that the concept of trust may be inapplicable.There may be a plausible reason as to why it all happened. After 1919 as we have already noticed Suriaji executed a deed of his entire ¼ right which he acquired under the gift from his grandfather in favour of Gones which translated to roughly 22.5 hectares. There is no case that the said gift was not accepted by Gones. In fact, the property covered by said gift and also the property gifted by the grandfather to Gones with another 1/ 4 right in property ‘M? came to be sold in the year 1937.It is also most significant that not only did Gones did not raise any objection during or immediately after inventory proceedings but though he lived till the year 1978 which is nearly 41 years after 1937 Gones is not shown to have ever raised any claim in regard to the plaint schedule property while he was alive. Equally as found by the High Court and the first appellate Court there is no material to show that Gones was in receipt of income from property which is specific case of the appellants.Thus, Gones was not in receipt of any income. Property was shown in the name of Shantibai. Still further in 1969 Shantibai executes a gift deed of the plaint scheduled properly. Immediately thereafter partition deeds are executed between Shantibai and children. Thus, Shantibai treated the property as belonging to her and she has accordingly executed the Gift deed and subsequently partition deed entered into on the said basis. Still later land acquisition proceedings were held in respect of part of the plaint schedule property. The compensation determined was paid on the basis that Gones did not have any right. When such is the position, we would think that on the face of it abandonment may not be inappropriate in the peculiar facts of this case. If the legal requirement is it must further amount to estoppel, one of the conditions to be fulfilled is acting on the representation, the representee must act to his detriment. We proceed on the basis that there was representation by conduct of Gones, that he acknowledged the right of Shantibai. It may be difficult to establish that Shantibai acted to her detriment. Further there is no defence pleaded as to estoppel or abandonment. No doubt the latter objection may be a milder obstacle if the pleading as a whole could imply such aIN AN APPEAL GENERATED BY SPECIALWe will however assume and proceed on the footing that Gones was entitled for 1/2 share, payment of Rs.1000/- was not a condition precedent in a suit based on title that adverse possession has not been proved (particularly having regard to the inconsistent plea based on title) and since Gones had title and the substantive prayer is to be treated as one for partition [even though the declaratory relief may be barred] and therefore suit is not barred by time and there is no estoppel. Still we would not exercise our discretionary power in an appeal which is generated by special leave. It will be wholly inequitable to intervene in favour of the appellants as successors of Gones. The decree of the first appellate court as confirmed by the High Court in our view has resulted in a decision which is otherwisethis case, as we have noticed apart from 22.5 hectares in property ‘M? which was obtained by gift deed executed by grandfather in favour of Gones, in 1925. Gones acquired another gift by Suriaji?s wife 22.5 hectares of land in property ‘M?. As we have noticed there was 91 hectares in property ‘M? and nearly 31 hectares as property ‘B?. Thus Gones got 45 hectares approximately as a result of the gift deeds of 1913 and 1925. The case of the appellant is based on the settlement deed of 1919, no doubt read with sale deed of 1915. If instead of Gift deed of 1925 and Suriaji had to strictly confirm to the deed of 1919 as appellants contended Suriaji would have had to transfer only 19 hectares it would be a little more than 11 hectares from property ‘M? and a little more than 7 hectares from property ‘B? but the grand total would have been only 19 hectares. Gones in other words would have got 19 hectares but admittedly Suriaji has gifted Gones 1/4 share in property ‘M? in 1925 which translated to about 22.5 hectares. Thus he was given almost more than 3 hectares than he would have got if the settlement deed of 1919 was enforced. If the suit is decreed in this case, the result would be that Gones would stand allotted a little more than 64 hectares whereas the branch of Suriaji would have to rest content with just 19 hectares. This fact as also the fact the Gones during his whole lifetime and it be remembered that Gones died only in 1978 did not raise his little finger against the exclusive right being given to his brother?s family dissuades us at any rate from interfering in this matter. | 0 | 25,868 | 4,737 | ### Instruction:
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our view has resulted in a decision which is otherwise just. In Taherakhatoon (D) by LRs v. Salambin Mohammad 1999(2) SCC 635 , it has been held that even after the grant of special leave in an appeal this Court is not bound to interfere. This Court inter alia held as follows: "15. It is now well settled that though special leave is granted, the iscretionary power which vested in the Court at the stage of the special leave petition continues to remain with the Court even at the stage when the appeal comes up for hearing and when both sides are heard on merits in the appeal. This principle is applicable to all kinds of appeals admitted by special leave under Article 136, irrespective of the nature of the subject-matter. It was so laid down by a Constitution Bench of five learned Judges of this Court in Pritam Singh v. State [AIR 1950 SC 169 : 1950 SCR 453 ]. In that case, it was argued for the appellant that once special leave was granted and the matter was registered as an appeal, the case should be disposed of on merits on all points and that the discretionary power available at the stage of grant of special leave was not available when the appeal was being heard on merits. 16. This Court rejected the said contention and referred to the following dicta of the Privy Council in Ibrahim v. R. [AIR 1914 PC 155] :?[T]he Board had repeatedly treated applications for leave to appeal and the hearing of criminal appeals as being upon the same footing: Reil case [Riel v. R., (1885) 10 AC 675 : 58 LJPC 28] ; Deeming, ex p [1892 AC 422 : 8 TLR 577]. The Board cannot give leave to appeal where the grounds suggested could not sustain the appeal itself; and conversely, it cannot allow an appeal on grounds that would not have sufficed for the grant of permission to bring it.? This Court observed that the rule laid down by the Privy Council is based on sound principle and only those points could be urged at the final hearing of the appeal which were fit to be urged at the preliminary stage when leave to appeal was asked for and it would be illogical to adopt different standards at two different stages of the same case. This Court observed (para 8) that, so far as Article 136 was concerned, it was to be noted firstly that it was very general and was not confined merely to criminal cases, and that (see para 9), the wide discretionary power with which the Court was concerned was applicable to all types of cases. The power under Article 136 according to this Court,?is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article. By virtue of this article, we can grant special leave in civil cases, in criminal cases, in income tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases?. (emphasis supplied) This Court emphasised:?The only uniform standard which in our opinion can be laid down in the circumstances is that Court should grant special leave to appeal in those cases where special circumstances are shown to exist.? This Court then concluded:?Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.? 20. In view of the above decisions, even though we are now dealing with the appeal after grant of special leave, we are not bound to go into merits and even if we do so and declare the law or point out the error — still we may not interfere if the justice of the case on facts does not require interference or if we feel that the relief could be moulded in a different fashion... ? (emphasis supplied) In this case, as we have noticed apart from 22.5 hectares in property ‘M? which was obtained by gift deed executed by grandfather in favour of Gones, in 1925. Gones acquired another gift by Suriaji?s wife 22.5 hectares of land in property ‘M?. As we have noticed there was 91 hectares in property ‘M? and nearly 31 hectares as property ‘B?. Thus Gones got 45 hectares approximately as a result of the gift deeds of 1913 and 1925. The case of the appellant is based on the settlement deed of 1919, no doubt read with sale deed of 1915. If instead of Gift deed of 1925 and Suriaji had to strictly confirm to the deed of 1919 as appellants contended Suriaji would have had to transfer only 19 hectares it would be a little more than 11 hectares from property ‘M? and a little more than 7 hectares from property ‘B? but the grand total would have been only 19 hectares. Gones in other words would have got 19 hectares but admittedly Suriaji has gifted Gones 1/4 share in property ‘M? in 1925 which translated to about 22.5 hectares. Thus he was given almost more than 3 hectares than he would have got if the settlement deed of 1919 was enforced. If the suit is decreed in this case, the result would be that Gones would stand allotted a little more than 64 hectares whereas the branch of Suriaji would have to rest content with just 19 hectares. This fact as also the fact the Gones during his whole lifetime and it be remembered that Gones died only in 1978 did not raise his little finger against the exclusive right being given to his brother?s family dissuades us at any rate from interfering in this matter.
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is produced by the appellants to show that Gones protested in any manner either during or at the end of proceedings. Nothing is produced to show that allotment to Shantibai was ever challenged in any manner by Gones. In other words, Gones by his conduct must be treated as having held that he has accepted that the property which was allotted in the inventory proceedings will belong to Shantibai. Since 1937 when the said allotment took place for all purpose, the property stood acknowledged by Gones as property allotted to Shantibai. We are unable to accept the case that it would amount to fraud. There is no case of fraud as such set up by the appellants. There is a definite case for the respondents that there is no concept of trust in the Portuguese law and that there is no distinction between legal and equitable estate. We have taken the view that the concept of trust may be inapplicable.There may be a plausible reason as to why it all happened. After 1919 as we have already noticed Suriaji executed a deed of his entire ¼ right which he acquired under the gift from his grandfather in favour of Gones which translated to roughly 22.5 hectares. There is no case that the said gift was not accepted by Gones. In fact, the property covered by said gift and also the property gifted by the grandfather to Gones with another 1/ 4 right in property ‘M? came to be sold in the year 1937.It is also most significant that not only did Gones did not raise any objection during or immediately after inventory proceedings but though he lived till the year 1978 which is nearly 41 years after 1937 Gones is not shown to have ever raised any claim in regard to the plaint schedule property while he was alive. Equally as found by the High Court and the first appellate Court there is no material to show that Gones was in receipt of income from property which is specific case of the appellants.Thus, Gones was not in receipt of any income. Property was shown in the name of Shantibai. Still further in 1969 Shantibai executes a gift deed of the plaint scheduled properly. Immediately thereafter partition deeds are executed between Shantibai and children. Thus, Shantibai treated the property as belonging to her and she has accordingly executed the Gift deed and subsequently partition deed entered into on the said basis. Still later land acquisition proceedings were held in respect of part of the plaint schedule property. The compensation determined was paid on the basis that Gones did not have any right. When such is the position, we would think that on the face of it abandonment may not be inappropriate in the peculiar facts of this case. If the legal requirement is it must further amount to estoppel, one of the conditions to be fulfilled is acting on the representation, the representee must act to his detriment. We proceed on the basis that there was representation by conduct of Gones, that he acknowledged the right of Shantibai. It may be difficult to establish that Shantibai acted to her detriment. Further there is no defence pleaded as to estoppel or abandonment. No doubt the latter objection may be a milder obstacle if the pleading as a whole could imply such aIN AN APPEAL GENERATED BY SPECIALWe will however assume and proceed on the footing that Gones was entitled for 1/2 share, payment of Rs.1000/- was not a condition precedent in a suit based on title that adverse possession has not been proved (particularly having regard to the inconsistent plea based on title) and since Gones had title and the substantive prayer is to be treated as one for partition [even though the declaratory relief may be barred] and therefore suit is not barred by time and there is no estoppel. Still we would not exercise our discretionary power in an appeal which is generated by special leave. It will be wholly inequitable to intervene in favour of the appellants as successors of Gones. The decree of the first appellate court as confirmed by the High Court in our view has resulted in a decision which is otherwisethis case, as we have noticed apart from 22.5 hectares in property ‘M? which was obtained by gift deed executed by grandfather in favour of Gones, in 1925. Gones acquired another gift by Suriaji?s wife 22.5 hectares of land in property ‘M?. As we have noticed there was 91 hectares in property ‘M? and nearly 31 hectares as property ‘B?. Thus Gones got 45 hectares approximately as a result of the gift deeds of 1913 and 1925. The case of the appellant is based on the settlement deed of 1919, no doubt read with sale deed of 1915. If instead of Gift deed of 1925 and Suriaji had to strictly confirm to the deed of 1919 as appellants contended Suriaji would have had to transfer only 19 hectares it would be a little more than 11 hectares from property ‘M? and a little more than 7 hectares from property ‘B? but the grand total would have been only 19 hectares. Gones in other words would have got 19 hectares but admittedly Suriaji has gifted Gones 1/4 share in property ‘M? in 1925 which translated to about 22.5 hectares. Thus he was given almost more than 3 hectares than he would have got if the settlement deed of 1919 was enforced. If the suit is decreed in this case, the result would be that Gones would stand allotted a little more than 64 hectares whereas the branch of Suriaji would have to rest content with just 19 hectares. This fact as also the fact the Gones during his whole lifetime and it be remembered that Gones died only in 1978 did not raise his little finger against the exclusive right being given to his brother?s family dissuades us at any rate from interfering in this matter.
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Technicians Studio Private Ltd Vs. Lila Ghosh & Anr | of part performance of a contract for the purposes of section 53A of the Transfer of Property , Act or as evidence of any collateral transaction not required to be effected by registered instrument. In order to be entitled to the protection of section 53A, the transferee must perform or must be willing to perform his part of the contract. In this case one of the terms in the petition of compromise was that the appellant would pay a monthly rent of Rs. 1000/- and there is no dispute that this sum was paid every month for the period of sixteen years. It has not been found or even claimed that any such sum was paid and accepted after the expiry of that period. Mr. A. K. Sen appearing for the appellant contends that as a result of these monthly payments not Only the protection under section 53A was available to the appellant, but a monthly tenancy also came into existence which subsisted after the period of sixteen years mentioned in the petition of compromise had expired. In support of his contention Mr. Sen relies mainly on their decision of this Court in Ram Kumar Das v. Jagadish Chandra Deb Dhabal Deb and another.(1) We do not think that Ram Kumars case is an authority for the proposition Mr. Sen was contending for that in every case where a person enters into possession on the strength of an invalid lease and the landlord accepts rent in terms of that invalid lease, a monthly tenancy is created by implication of law. In Ram Kumars case it was admitted that in the beginning there was a relationship of landlord and tenant between the parties, and the only question that arose for decision was whether the defendant was in fact a monthly tenant under the plaintiff at the date when the notice to quit was served upon him. The Court speaking through Mukherjea J. came to the conclusion that "on the facts of this case, it would be quite proper to hold that the. tenancy of the defendant was one from month to month since its inception in 1924". It is not necessary to refer to the other cases cited by Mr. Sen; these are the decisions of several High Courts which are either based on an incorrect reading of Ram Kumars case or in which the contention Mr. Sen has raised here did not arise for consideration. If Mr. Sens contention were correct, then it was unnecessary to enact section 53A.Mr. Sen has also referred to the law in England according to which a tenancy at will is implied when a person enters into possession under a void lease. But part performance in this country does not give rise to an equity as in England but to a statutory right which is comparatively a restricted right in that it is, available only as a defence. It has, been held that section 53A is only a partial importation in the statute law of India of the English doctrine of part performance. see Sheth Maneklal Mansukhbhai v. Messrs Hormusji Jamshedii Ginwalla and sons([1950] S.C.R.75.). It is well settled that section 53A confers no active title on the transferee in possession, it only imposes a statutory bar on the transferor. (see Probodh Kumar Das and others v. Dantmara Tea Company Limited and others (66 I.A. 293.). Thus a person who is let into possession on the strength of a void lease does not acquire any interest in the property but gets under section 53A only a right, to defend his possession. As the section says, this right is subject to the condition that the transferee has performed or is willing to perform his part of the contract. In this case under the petition of compromise the appellant had to pay a monthly sum of Rs. 1000/as rent during the period of the intended lease which the appellant did. These monthly payments brought the appellant under the coverage of section 53A, but from this fact alone that the appellant had performed his part of the contract, it is not possible to conclude that a tenancy was brought into existence. Even the acceptance of these payments tendered as rent is not decisive of a tenancy. "In its wider sense rent means any payment made for the use of land or buildings. In its narrower sense it means payment made by tenant to landlord for property demised to him." (State of Punjab v. British India Corporation Ltd.) ([1964] 2 S.C.R. 114, 123.). Here the payments can be explained, as the courts have done, as evidence of the appellants willingness to perform their part of the contract. This does not mean however that there cannot be a relationship of landlord and tenant in any case where the transferee has taken possession of the property under a void lease or in part performance of a contract and is entitled to protection under section 53A of the Transfer of Property Act. Such a view would be incorrect and encourage attempts to circumbet the protection of the Rent Acts given to the tenants. Whether the relationship of landlord and tenant exists between the parties depends on whether the parties intended to create a tenancy, and the intention has to be gathered from the facts and circumstances of the case. It is possible to find on the facts of a given case that payments made by a transferee in possession were really not in terms of the contract but independent of it, and this might justify an inference of tenancy in his favour. The question is ultimately one of fact. In the present case the High Court has found in agreement with the courts below that the "payment of rent by the appellant to the plaintiff respondent who accepted the same did not create any tenancy in favour of the appellant inasmuch as the said payments were made in part performance of the said contract of lease contained in the compromise petition". 4. | 1[ds]Admittedly there was an ejectment decree against the appellant before the petition of compromise was filed in the High Court. By the compromise the decree was not set aside but a lease for sixteen years was sought to be Created in favour of the appellant. Thus whatever interest the appellant may have had in the property was extinguished after the passing of the decree and even if they, continued in possession after the decree was passed the subsequent possession in order to be valid must be referable to the compromise. Clearly, the petition of compromise seeking to create a lease for sixteen years was required to be registered and not being registered it did not affect the immovable property to which it relates and could not be received as evidence of any transaction affecting the property though it was admissible as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property , Act or as evidence of any collateral transaction not required to be effected by registered instrument. In order to be entitled to the protection of section 53A, the transferee must perform or must be willing to perform his part of the contract. In this case one of the terms in the petition of compromise was that the appellant would pay a monthly rent of Rs. 1000/- and there is no dispute that this sum was paid every month for the period of sixteen years. It has not been found or even claimed that any such sum was paid and accepted after the expiry of that periodIn Ram Kumars case it was admitted that in the beginning there was a relationship of landlord and tenant between the parties, and the only question that arose for decision was whether the defendant was in fact a monthly tenant under the plaintiff at the date when the notice to quit was served upon him. The Court speaking through Mukherjea J. came to the conclusion that "on the facts of this case, it would be quite proper to hold that the. tenancy of the defendant was one from month to month since its inception in 1924". It is not necessary to refer to the other cases cited by Mr. Sen; these are the decisions of several High Courts which are either based on an incorrect reading of Ram Kumars case or in which the contention Mr. Sen has raised here did not arise for consideration. If Mr. Sens contention were correct, then it was unnecessary to enact section 53A.Mr. Sen has also referred to the law in England according to which a tenancy at will is implied when a person enters into possession under a void lease. But part performance in this country does not give rise to an equity as in England but to a statutory right which is comparatively a restricted right in that it is, available only as a defence. It has, been held that section 53A is only a partial importation in the statute law of India of the English doctrine of part performance. see Sheth Maneklal Mansukhbhai v. Messrs Hormusji Jamshedii Ginwalla and sons([1950] S.C.R.75.). It is well settled that section 53A confers no active title on the transferee in possession, it only imposes a statutory bar on the transferor. (see Probodh Kumar Das and others v. Dantmara Tea Company Limited and others (66 I.A. 293.). Thus a person who is let into possession on the strength of a void lease does not acquire any interest in the property but gets under section 53A only a right, to defend his possession. As the section says, this right is subject to the condition that the transferee has performed or is willing to perform his part of the contract. In this case under the petition of compromise the appellant had to pay a monthly sum of Rs. 1000/as rent during the period of the intended lease which the appellant did. These monthly payments brought the appellant under the coverage of section 53A, but from this fact alone that the appellant had performed his part of the contract, it is not possible to conclude that a tenancy was brought into existence. Even the acceptance of these payments tendered as rent is not decisive of a tenancy. "In its wider sense rent means any payment made for the use of land or buildings. In its narrower sense it means payment made by tenant to landlord for property demised to him." (State of Punjab v. British India Corporation Ltd.) ([1964] 2 S.C.R. 114, 123.). Here the payments can be explained, as the courts have done, as evidence of the appellants willingness to perform their part of the contract. This does not mean however that there cannot be a relationship of landlord and tenant in any case where the transferee has taken possession of the property under a void lease or in part performance of a contract and is entitled to protection under section 53A of the Transfer of Property Act. Such a view would be incorrect and encourage attempts to circumbet the protection of the Rent Acts given to the tenants. Whether the relationship of landlord and tenant exists between the parties depends on whether the parties intended to create a tenancy, and the intention has to be gathered from the facts and circumstances of the case. It is possible to find on the facts of a given case that payments made by a transferee in possession were really not in terms of the contract but independent of it, and this might justify an inference of tenancy in his favour. The question is ultimately one of fact. In the present case the High Court has found in agreement with the courts below that the "payment of rent by the appellant to the plaintiff respondent who accepted the same did not create any tenancy in favour of the appellant inasmuch as the said payments were made in part performance of the said contract of lease contained in the compromise petition"We do not think that Ram Kumars case is an authority for the proposition Mr. Sen was contending for that in every case where a person enters into possession on the strength of an invalid lease and the landlord accepts rent in terms of that invalid lease, a monthly tenancy is created by implication of law. | 1 | 1,975 | 1,141 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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of part performance of a contract for the purposes of section 53A of the Transfer of Property , Act or as evidence of any collateral transaction not required to be effected by registered instrument. In order to be entitled to the protection of section 53A, the transferee must perform or must be willing to perform his part of the contract. In this case one of the terms in the petition of compromise was that the appellant would pay a monthly rent of Rs. 1000/- and there is no dispute that this sum was paid every month for the period of sixteen years. It has not been found or even claimed that any such sum was paid and accepted after the expiry of that period. Mr. A. K. Sen appearing for the appellant contends that as a result of these monthly payments not Only the protection under section 53A was available to the appellant, but a monthly tenancy also came into existence which subsisted after the period of sixteen years mentioned in the petition of compromise had expired. In support of his contention Mr. Sen relies mainly on their decision of this Court in Ram Kumar Das v. Jagadish Chandra Deb Dhabal Deb and another.(1) We do not think that Ram Kumars case is an authority for the proposition Mr. Sen was contending for that in every case where a person enters into possession on the strength of an invalid lease and the landlord accepts rent in terms of that invalid lease, a monthly tenancy is created by implication of law. In Ram Kumars case it was admitted that in the beginning there was a relationship of landlord and tenant between the parties, and the only question that arose for decision was whether the defendant was in fact a monthly tenant under the plaintiff at the date when the notice to quit was served upon him. The Court speaking through Mukherjea J. came to the conclusion that "on the facts of this case, it would be quite proper to hold that the. tenancy of the defendant was one from month to month since its inception in 1924". It is not necessary to refer to the other cases cited by Mr. Sen; these are the decisions of several High Courts which are either based on an incorrect reading of Ram Kumars case or in which the contention Mr. Sen has raised here did not arise for consideration. If Mr. Sens contention were correct, then it was unnecessary to enact section 53A.Mr. Sen has also referred to the law in England according to which a tenancy at will is implied when a person enters into possession under a void lease. But part performance in this country does not give rise to an equity as in England but to a statutory right which is comparatively a restricted right in that it is, available only as a defence. It has, been held that section 53A is only a partial importation in the statute law of India of the English doctrine of part performance. see Sheth Maneklal Mansukhbhai v. Messrs Hormusji Jamshedii Ginwalla and sons([1950] S.C.R.75.). It is well settled that section 53A confers no active title on the transferee in possession, it only imposes a statutory bar on the transferor. (see Probodh Kumar Das and others v. Dantmara Tea Company Limited and others (66 I.A. 293.). Thus a person who is let into possession on the strength of a void lease does not acquire any interest in the property but gets under section 53A only a right, to defend his possession. As the section says, this right is subject to the condition that the transferee has performed or is willing to perform his part of the contract. In this case under the petition of compromise the appellant had to pay a monthly sum of Rs. 1000/as rent during the period of the intended lease which the appellant did. These monthly payments brought the appellant under the coverage of section 53A, but from this fact alone that the appellant had performed his part of the contract, it is not possible to conclude that a tenancy was brought into existence. Even the acceptance of these payments tendered as rent is not decisive of a tenancy. "In its wider sense rent means any payment made for the use of land or buildings. In its narrower sense it means payment made by tenant to landlord for property demised to him." (State of Punjab v. British India Corporation Ltd.) ([1964] 2 S.C.R. 114, 123.). Here the payments can be explained, as the courts have done, as evidence of the appellants willingness to perform their part of the contract. This does not mean however that there cannot be a relationship of landlord and tenant in any case where the transferee has taken possession of the property under a void lease or in part performance of a contract and is entitled to protection under section 53A of the Transfer of Property Act. Such a view would be incorrect and encourage attempts to circumbet the protection of the Rent Acts given to the tenants. Whether the relationship of landlord and tenant exists between the parties depends on whether the parties intended to create a tenancy, and the intention has to be gathered from the facts and circumstances of the case. It is possible to find on the facts of a given case that payments made by a transferee in possession were really not in terms of the contract but independent of it, and this might justify an inference of tenancy in his favour. The question is ultimately one of fact. In the present case the High Court has found in agreement with the courts below that the "payment of rent by the appellant to the plaintiff respondent who accepted the same did not create any tenancy in favour of the appellant inasmuch as the said payments were made in part performance of the said contract of lease contained in the compromise petition". 4.
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the passing of the decree and even if they, continued in possession after the decree was passed the subsequent possession in order to be valid must be referable to the compromise. Clearly, the petition of compromise seeking to create a lease for sixteen years was required to be registered and not being registered it did not affect the immovable property to which it relates and could not be received as evidence of any transaction affecting the property though it was admissible as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property , Act or as evidence of any collateral transaction not required to be effected by registered instrument. In order to be entitled to the protection of section 53A, the transferee must perform or must be willing to perform his part of the contract. In this case one of the terms in the petition of compromise was that the appellant would pay a monthly rent of Rs. 1000/- and there is no dispute that this sum was paid every month for the period of sixteen years. It has not been found or even claimed that any such sum was paid and accepted after the expiry of that periodIn Ram Kumars case it was admitted that in the beginning there was a relationship of landlord and tenant between the parties, and the only question that arose for decision was whether the defendant was in fact a monthly tenant under the plaintiff at the date when the notice to quit was served upon him. The Court speaking through Mukherjea J. came to the conclusion that "on the facts of this case, it would be quite proper to hold that the. tenancy of the defendant was one from month to month since its inception in 1924". It is not necessary to refer to the other cases cited by Mr. Sen; these are the decisions of several High Courts which are either based on an incorrect reading of Ram Kumars case or in which the contention Mr. Sen has raised here did not arise for consideration. If Mr. Sens contention were correct, then it was unnecessary to enact section 53A.Mr. Sen has also referred to the law in England according to which a tenancy at will is implied when a person enters into possession under a void lease. But part performance in this country does not give rise to an equity as in England but to a statutory right which is comparatively a restricted right in that it is, available only as a defence. It has, been held that section 53A is only a partial importation in the statute law of India of the English doctrine of part performance. see Sheth Maneklal Mansukhbhai v. Messrs Hormusji Jamshedii Ginwalla and sons([1950] S.C.R.75.). It is well settled that section 53A confers no active title on the transferee in possession, it only imposes a statutory bar on the transferor. (see Probodh Kumar Das and others v. Dantmara Tea Company Limited and others (66 I.A. 293.). Thus a person who is let into possession on the strength of a void lease does not acquire any interest in the property but gets under section 53A only a right, to defend his possession. As the section says, this right is subject to the condition that the transferee has performed or is willing to perform his part of the contract. In this case under the petition of compromise the appellant had to pay a monthly sum of Rs. 1000/as rent during the period of the intended lease which the appellant did. These monthly payments brought the appellant under the coverage of section 53A, but from this fact alone that the appellant had performed his part of the contract, it is not possible to conclude that a tenancy was brought into existence. Even the acceptance of these payments tendered as rent is not decisive of a tenancy. "In its wider sense rent means any payment made for the use of land or buildings. In its narrower sense it means payment made by tenant to landlord for property demised to him." (State of Punjab v. British India Corporation Ltd.) ([1964] 2 S.C.R. 114, 123.). Here the payments can be explained, as the courts have done, as evidence of the appellants willingness to perform their part of the contract. This does not mean however that there cannot be a relationship of landlord and tenant in any case where the transferee has taken possession of the property under a void lease or in part performance of a contract and is entitled to protection under section 53A of the Transfer of Property Act. Such a view would be incorrect and encourage attempts to circumbet the protection of the Rent Acts given to the tenants. Whether the relationship of landlord and tenant exists between the parties depends on whether the parties intended to create a tenancy, and the intention has to be gathered from the facts and circumstances of the case. It is possible to find on the facts of a given case that payments made by a transferee in possession were really not in terms of the contract but independent of it, and this might justify an inference of tenancy in his favour. The question is ultimately one of fact. In the present case the High Court has found in agreement with the courts below that the "payment of rent by the appellant to the plaintiff respondent who accepted the same did not create any tenancy in favour of the appellant inasmuch as the said payments were made in part performance of the said contract of lease contained in the compromise petition"We do not think that Ram Kumars case is an authority for the proposition Mr. Sen was contending for that in every case where a person enters into possession on the strength of an invalid lease and the landlord accepts rent in terms of that invalid lease, a monthly tenancy is created by implication of law.
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Sanghi Brothers (Indore) Pvt.Ltd Vs. Sanjay Choudhary & Ors | and is trying to assail the findings of the trial Court and submits that no charge under Section 420 and 406 IPC is clearly made out against the applicants on the basis of evidence on record and it is also not so unimpeachable that if it is not rebutted then a conviction can be based on it." The High Court was of the view that framing of charge was not sustainable. 4. In support of the appeal, learned counsel for the appellant submitted that the conclusions of the High Court are clearly indefensible. It is not a requirement of law that the offence is not so unimpeachable and if it is not rebutted, conviction can be based on it. 5. Learned counsel for the respondents on the other hand submitted that the background facts have been rightly taken note of by the High Court to conclude that the framing of charge was not sustainable. It was pointed out that there was no intention of committing the alleged fraud as has been rightly held by the High Court. Part of the amount has been received and sale of vehicle was permitted and the bank guarantee was also encashed. Even if it is conceded that there was breach of contract at some point of time that was remedied because of the permission to sell vehicles and by encashment of the bank guarantee. The whole agreement was retrieved. In order to constitute fraud there must be some mental evil design. There is no question of any seminal intent as there was civil dispute and the same has been taken note of by the High Court, more particularly, with reference to the allegations. 6. By way of reply learned counsel for the appellant submitted that because of huge dues the appellant had the right of repossession which could have been exercised w.e.f. 6.1.1990 and on 8.2.1990 four personal bank guarantees were given by the respondents. Since that was not adequate, additional security was required and same was furnished by offering property security which was not owned by the respondents. This could be known only after the letter of the bank was received. The intention was very clear, because it was aimed at preventing the appellant from exercising the right of re-possession. It is not a case where the High Court conceded that there was no offence made out. Charges were framed and therefore the High Court should not have by the impugned order aborted the whole trial. The High Court is wrong in stating that there was no allegation of any criminal intention at the initial stage. It is pointed out that this aspect was explicitly stated in the complaint.7. In State of Maharashtra and Ors. V. Som Nath Thapa and Ors. (1996 (4) SCC 659 ) this Court observed as follows: "Let us note the meaning of the word `presume. In Blacks Law Dictionary it has been defined to mean "to believe or accept upon probable evidence". (emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law `presume means "to take as proved until evidence to the contrary is forthcoming". Strouds Legal dictionary has quoted in this context a certain judgment according to which "A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged". (Emphasis supplied). In Law Lexicon by P Ramanath Aiyar the same quotation finds place at p. 1007 of 1987 Edn.32. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence; a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage." 8. Sections 227, 239 and 245 deal with discharge from criminal charge. In State of Karnataka v. L. Muniswamy (1977 (2) SCC 699 ) it was noted that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused. (Underlined for emphasis). The Court has to see while considering the question of framing the charge as to whether the material brought on record could reasonably connect the accused with the trial. Nothing more is required to be inquired into. (See Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia (1989 (1) SCC 715 ) and State of West Bengal v. Mohd. Khalid (1995 (1) SCC 684 ). 9. In R.S. Nayak v. A.R. Antulay (1986 (2) SCC 716 ) this Court referred to Sections 227 and 228 so far as they are relatable to trial. Sections 239 and 240 are relatable to trial of warrant cases and 245(1) and (2) relatable to summons cases. 10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima facie case to be applied. 11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the | 1[ds]on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence; a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at thatpresent case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. | 1 | 1,761 | 199 | ### 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:
and is trying to assail the findings of the trial Court and submits that no charge under Section 420 and 406 IPC is clearly made out against the applicants on the basis of evidence on record and it is also not so unimpeachable that if it is not rebutted then a conviction can be based on it." The High Court was of the view that framing of charge was not sustainable. 4. In support of the appeal, learned counsel for the appellant submitted that the conclusions of the High Court are clearly indefensible. It is not a requirement of law that the offence is not so unimpeachable and if it is not rebutted, conviction can be based on it. 5. Learned counsel for the respondents on the other hand submitted that the background facts have been rightly taken note of by the High Court to conclude that the framing of charge was not sustainable. It was pointed out that there was no intention of committing the alleged fraud as has been rightly held by the High Court. Part of the amount has been received and sale of vehicle was permitted and the bank guarantee was also encashed. Even if it is conceded that there was breach of contract at some point of time that was remedied because of the permission to sell vehicles and by encashment of the bank guarantee. The whole agreement was retrieved. In order to constitute fraud there must be some mental evil design. There is no question of any seminal intent as there was civil dispute and the same has been taken note of by the High Court, more particularly, with reference to the allegations. 6. By way of reply learned counsel for the appellant submitted that because of huge dues the appellant had the right of repossession which could have been exercised w.e.f. 6.1.1990 and on 8.2.1990 four personal bank guarantees were given by the respondents. Since that was not adequate, additional security was required and same was furnished by offering property security which was not owned by the respondents. This could be known only after the letter of the bank was received. The intention was very clear, because it was aimed at preventing the appellant from exercising the right of re-possession. It is not a case where the High Court conceded that there was no offence made out. Charges were framed and therefore the High Court should not have by the impugned order aborted the whole trial. The High Court is wrong in stating that there was no allegation of any criminal intention at the initial stage. It is pointed out that this aspect was explicitly stated in the complaint.7. In State of Maharashtra and Ors. V. Som Nath Thapa and Ors. (1996 (4) SCC 659 ) this Court observed as follows: "Let us note the meaning of the word `presume. In Blacks Law Dictionary it has been defined to mean "to believe or accept upon probable evidence". (emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law `presume means "to take as proved until evidence to the contrary is forthcoming". Strouds Legal dictionary has quoted in this context a certain judgment according to which "A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged". (Emphasis supplied). In Law Lexicon by P Ramanath Aiyar the same quotation finds place at p. 1007 of 1987 Edn.32. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence; a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage." 8. Sections 227, 239 and 245 deal with discharge from criminal charge. In State of Karnataka v. L. Muniswamy (1977 (2) SCC 699 ) it was noted that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused. (Underlined for emphasis). The Court has to see while considering the question of framing the charge as to whether the material brought on record could reasonably connect the accused with the trial. Nothing more is required to be inquired into. (See Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia (1989 (1) SCC 715 ) and State of West Bengal v. Mohd. Khalid (1995 (1) SCC 684 ). 9. In R.S. Nayak v. A.R. Antulay (1986 (2) SCC 716 ) this Court referred to Sections 227 and 228 so far as they are relatable to trial. Sections 239 and 240 are relatable to trial of warrant cases and 245(1) and (2) relatable to summons cases. 10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima facie case to be applied. 11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the
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1
### Explanation:
on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence; a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at thatpresent case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction.
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Dr. Umakant Saran Vs. State of Bihar & Others | Professor of Surgery and the Principal of the College and in due course the Vice Chancellor accepted the proposal that the post of Casualty Officer should be recognised as a teaching post. On 12-6-1963 the State Government wrote to the Secretary, Indian Medical Council that the post of Casualty Officer must also be recognised as a teaching post. In its letter dated 4-11-1963 the State Government informed the Secretary, Medical Council that Dr. Mahendra Pratap Sinha, M. S. (that is respondent No. 5) was one of the 8 Casualty Officers and had teaching experience from 23-9-1959 to 5-8-1963. In reply to that letter the Secretary on 6-2-1964 informed the Government that thought they were not very much in favour of Casualty Officers being recognized as holding teaching posts the Executive Committee had decided that the teaching done by the 8 Doctors as Casulty Officers shall be counted, as a special case, as teaching done by the Registrar for the purposes of appointment to the higher posts. It will be seen that this decision had been taken quite a long time before the Writ Petition had been filed, Respondent No. 5, therefore, found a place in the same class as Registrars, Tutors etc. 12. Similar is the case of respondent No. 6. He held a supernumerary post of a Civil Assistant Surgeon attached to the Patna Medical College Hospital from 30-12-1959 and while in that post he had to teach under-graduate and post-graduate students. On 22-10-1962 Government issued a notification that 8 Doctors including respondent No. 6 were permitted to count certain periods of their service towards teaching experience. Respondent No. 6 was permitted to count his service from 30-12-1959 onwards towards teachding experience. Later, on 20-4-1963 Government seems to have gone back on this decision. But on representations being made, Government on 21-9-1964 directed that these Medical Officers may be permitted to count certain periods when they were on supernumerary duty towards teaching experience. One of the Medical Officers was respondent No. 6 and the period which was allowed to be counted was from 30-12-1959 to 2-7-1963 and again from 4-11-1963 to 9-1-1964. On the latter date respondent No. 6 was appointed Registrar, Department of Surgery, Patna Medical College Hospital on a temporary basis. He held that position till he was appointed a lecturer on 19-8-1965. 13. It is not disputed that respondents 5 and 6 had the necessary academic medical qualifications for appointment and if they also had the necessary teaching experience, as held by the Government, they would be eligible for appointment as lecturers in Surgery. The Medical Council had recommended that a lecturer in Surgery should be a Registrar or should have held an equivalent post in Surgery or like Clinical Department for at least 3 years in a teaching institution. It is clear from what has been already stated about respondents 5 and 6 that they were holding a post equivalent to the Registrar or Resident Medical Officer for much more than 3 years in the Medical College Hospital and hence they were eligible for appointment as lecturers. 14. Even so Dr. Saran complained that he was senior to respondents 5 and 6 and since they were all in the same class of teachers, his seniority could not be ignored. There can be no doubt that he was senior to respondent No. 5 but the same cannot be said with regard to respondent No. 6. It is true that respondent No. 6 was absorbed in the Medical Service for the first time in 1957 and in that sense he was junior to Dr. Saran pointed out, respondent No. 6 had been working as Assistant Malaria Officer from 1953 in a grade equivalent to that of Civil Assistant Surgeon and that on his absorption in 1957 as a Civil Assistant Surgeon, his seniority was counted in the cadre as from the date he was appointed as the Malaria Officer i.e. 1953. He cannot, therefore, be regarded as junior to Dr. Saran. Therefore, the latter cannot question the appointment of respondent No. 6 either on the ground that he was junior to him or on the ground that respondent No. 6 did not have teaching experience for 3 years. 15. As between Dr. Saran and respondent No. 5 it is true that respondent No. 5 was his junior in service. But he had the requisite minimum teaching experience which the petitioner did not have. It is not necessary for us to consider in this case whether the lecturers posts which were in class I service were filled by promotion, as contended for the appellant, or by deputation, as contended on behalf of the State. Assuming that the appellants contention is correct that the lecturers posts were filled by promotion, then it will have to be shown that the appellant, though he had the requisite qualification for his promotion, had been disregarded in favour of a junior. The answer made by the State Government is that they had taken the decision to fill the posts on March 31, 1965 and on that day the appellant had not even completed the minimum period of teaching experience while the other two had done so. In other words, the case is that the appellant was ineligible for appointment when the decision was taken. It is true that the appointment was actually notified on 19-8-1965 when the appellant had also completed his 3 years of experience. But obviously that is irrelevant. Decisions have to be taken first before appointments are notified. The usual administrative process takes some time. The appellant sought to controvert the statement of the Government that the decision had been taken to make the appointments on March 31, 1965. But we do not think there is any substance in that contention. It would, thus follow that while respondents 5 and 6 were eligible for appointment as lecturers on 31-3-1965 the appellant was not and, therefore, he cannot be regarded as aggrieved for the purpose of the relief claimed by him. | 0[ds]13. It is not disputed that respondents 5 and 6 had the necessary academic medical qualifications for appointment and if they also had the necessary teaching experience, as held by the Government, they would be eligible for appointment as lecturers in Surgery. The Medical Council had recommended that a lecturer in Surgery should be a Registrar or should have held an equivalent post in Surgery or like Clinical Department for at least 3 years in a teaching institution. It is clear from what has been already stated about respondents 5 and 6 that they were holding a post equivalent to the Registrar or Resident Medical Officer for much more than 3 years in the Medical College Hospital and hence they were eligible for appointment as lecturers14. Even so Dr. Saran complained that he was senior to respondents 5 and 6 and since they were all in the same class of teachers, his seniority could not be ignored. There can be no doubt that he was senior to respondent No. 5 but the same cannot be said with regard to respondent No. 6. It is true that respondent No. 6 was absorbed in the Medical Service for the first time in 1957 and in that sense he was junior to Dr. Saran pointed out, respondent No. 6 had been working as Assistant Malaria Officer from 1953 in a grade equivalent to that of Civil Assistant Surgeon and that on his absorption in 1957 as a Civil Assistant Surgeon, his seniority was counted in the cadre as from the date he was appointed as the Malaria Officer i.e. 1953. He cannot, therefore, be regarded as junior to Dr. Saran. Therefore, the latter cannot question the appointment of respondent No. 6 either on the ground that he was junior to him or on the ground that respondent No. 6 did not have teaching experience for 3 years15. As between Dr. Saran and respondent No. 5 it is true that respondent No. 5 was his junior in service. But he had the requisite minimum teaching experience which the petitioner did not have. It is not necessary for us to consider in this case whether the lecturers posts which were in class I service were filled by promotion, as contended for the appellant, or by deputation, as contended on behalf of the State. Assuming that the appellants contention is correct that the lecturers posts were filled by promotion, then it will have to be shown that the appellant, though he had the requisite qualification for his promotion, had been disregarded in favour of a junior. The answer made by the State Government is that they had taken the decision to fill the posts on March 31, 1965 and on that day the appellant had not even completed the minimum period of teaching experience while the other two had done so. In other words, the case is that the appellant was ineligible for appointment when the decision was taken. It is true that the appointment was actually notified on5 when the appellant had also completed his 3 years of experience. But obviously that is irrelevant. Decisions have to be taken first before appointments are notified. The usual administrative process takes some time. The appellant sought to controvert the statement of the Government that the decision had been taken to make the appointments on March 31, 1965. But we do not think there is any substance in that contention. It would, thus follow that while respondents 5 and 6 were eligible for appointment as lecturers on5 the appellant was not and, therefore, he cannot be regarded as aggrieved for the purpose of the relief claimed by him. | 0 | 3,205 | 669 | ### 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:
Professor of Surgery and the Principal of the College and in due course the Vice Chancellor accepted the proposal that the post of Casualty Officer should be recognised as a teaching post. On 12-6-1963 the State Government wrote to the Secretary, Indian Medical Council that the post of Casualty Officer must also be recognised as a teaching post. In its letter dated 4-11-1963 the State Government informed the Secretary, Medical Council that Dr. Mahendra Pratap Sinha, M. S. (that is respondent No. 5) was one of the 8 Casualty Officers and had teaching experience from 23-9-1959 to 5-8-1963. In reply to that letter the Secretary on 6-2-1964 informed the Government that thought they were not very much in favour of Casualty Officers being recognized as holding teaching posts the Executive Committee had decided that the teaching done by the 8 Doctors as Casulty Officers shall be counted, as a special case, as teaching done by the Registrar for the purposes of appointment to the higher posts. It will be seen that this decision had been taken quite a long time before the Writ Petition had been filed, Respondent No. 5, therefore, found a place in the same class as Registrars, Tutors etc. 12. Similar is the case of respondent No. 6. He held a supernumerary post of a Civil Assistant Surgeon attached to the Patna Medical College Hospital from 30-12-1959 and while in that post he had to teach under-graduate and post-graduate students. On 22-10-1962 Government issued a notification that 8 Doctors including respondent No. 6 were permitted to count certain periods of their service towards teaching experience. Respondent No. 6 was permitted to count his service from 30-12-1959 onwards towards teachding experience. Later, on 20-4-1963 Government seems to have gone back on this decision. But on representations being made, Government on 21-9-1964 directed that these Medical Officers may be permitted to count certain periods when they were on supernumerary duty towards teaching experience. One of the Medical Officers was respondent No. 6 and the period which was allowed to be counted was from 30-12-1959 to 2-7-1963 and again from 4-11-1963 to 9-1-1964. On the latter date respondent No. 6 was appointed Registrar, Department of Surgery, Patna Medical College Hospital on a temporary basis. He held that position till he was appointed a lecturer on 19-8-1965. 13. It is not disputed that respondents 5 and 6 had the necessary academic medical qualifications for appointment and if they also had the necessary teaching experience, as held by the Government, they would be eligible for appointment as lecturers in Surgery. The Medical Council had recommended that a lecturer in Surgery should be a Registrar or should have held an equivalent post in Surgery or like Clinical Department for at least 3 years in a teaching institution. It is clear from what has been already stated about respondents 5 and 6 that they were holding a post equivalent to the Registrar or Resident Medical Officer for much more than 3 years in the Medical College Hospital and hence they were eligible for appointment as lecturers. 14. Even so Dr. Saran complained that he was senior to respondents 5 and 6 and since they were all in the same class of teachers, his seniority could not be ignored. There can be no doubt that he was senior to respondent No. 5 but the same cannot be said with regard to respondent No. 6. It is true that respondent No. 6 was absorbed in the Medical Service for the first time in 1957 and in that sense he was junior to Dr. Saran pointed out, respondent No. 6 had been working as Assistant Malaria Officer from 1953 in a grade equivalent to that of Civil Assistant Surgeon and that on his absorption in 1957 as a Civil Assistant Surgeon, his seniority was counted in the cadre as from the date he was appointed as the Malaria Officer i.e. 1953. He cannot, therefore, be regarded as junior to Dr. Saran. Therefore, the latter cannot question the appointment of respondent No. 6 either on the ground that he was junior to him or on the ground that respondent No. 6 did not have teaching experience for 3 years. 15. As between Dr. Saran and respondent No. 5 it is true that respondent No. 5 was his junior in service. But he had the requisite minimum teaching experience which the petitioner did not have. It is not necessary for us to consider in this case whether the lecturers posts which were in class I service were filled by promotion, as contended for the appellant, or by deputation, as contended on behalf of the State. Assuming that the appellants contention is correct that the lecturers posts were filled by promotion, then it will have to be shown that the appellant, though he had the requisite qualification for his promotion, had been disregarded in favour of a junior. The answer made by the State Government is that they had taken the decision to fill the posts on March 31, 1965 and on that day the appellant had not even completed the minimum period of teaching experience while the other two had done so. In other words, the case is that the appellant was ineligible for appointment when the decision was taken. It is true that the appointment was actually notified on 19-8-1965 when the appellant had also completed his 3 years of experience. But obviously that is irrelevant. Decisions have to be taken first before appointments are notified. The usual administrative process takes some time. The appellant sought to controvert the statement of the Government that the decision had been taken to make the appointments on March 31, 1965. But we do not think there is any substance in that contention. It would, thus follow that while respondents 5 and 6 were eligible for appointment as lecturers on 31-3-1965 the appellant was not and, therefore, he cannot be regarded as aggrieved for the purpose of the relief claimed by him.
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0
### Explanation:
13. It is not disputed that respondents 5 and 6 had the necessary academic medical qualifications for appointment and if they also had the necessary teaching experience, as held by the Government, they would be eligible for appointment as lecturers in Surgery. The Medical Council had recommended that a lecturer in Surgery should be a Registrar or should have held an equivalent post in Surgery or like Clinical Department for at least 3 years in a teaching institution. It is clear from what has been already stated about respondents 5 and 6 that they were holding a post equivalent to the Registrar or Resident Medical Officer for much more than 3 years in the Medical College Hospital and hence they were eligible for appointment as lecturers14. Even so Dr. Saran complained that he was senior to respondents 5 and 6 and since they were all in the same class of teachers, his seniority could not be ignored. There can be no doubt that he was senior to respondent No. 5 but the same cannot be said with regard to respondent No. 6. It is true that respondent No. 6 was absorbed in the Medical Service for the first time in 1957 and in that sense he was junior to Dr. Saran pointed out, respondent No. 6 had been working as Assistant Malaria Officer from 1953 in a grade equivalent to that of Civil Assistant Surgeon and that on his absorption in 1957 as a Civil Assistant Surgeon, his seniority was counted in the cadre as from the date he was appointed as the Malaria Officer i.e. 1953. He cannot, therefore, be regarded as junior to Dr. Saran. Therefore, the latter cannot question the appointment of respondent No. 6 either on the ground that he was junior to him or on the ground that respondent No. 6 did not have teaching experience for 3 years15. As between Dr. Saran and respondent No. 5 it is true that respondent No. 5 was his junior in service. But he had the requisite minimum teaching experience which the petitioner did not have. It is not necessary for us to consider in this case whether the lecturers posts which were in class I service were filled by promotion, as contended for the appellant, or by deputation, as contended on behalf of the State. Assuming that the appellants contention is correct that the lecturers posts were filled by promotion, then it will have to be shown that the appellant, though he had the requisite qualification for his promotion, had been disregarded in favour of a junior. The answer made by the State Government is that they had taken the decision to fill the posts on March 31, 1965 and on that day the appellant had not even completed the minimum period of teaching experience while the other two had done so. In other words, the case is that the appellant was ineligible for appointment when the decision was taken. It is true that the appointment was actually notified on5 when the appellant had also completed his 3 years of experience. But obviously that is irrelevant. Decisions have to be taken first before appointments are notified. The usual administrative process takes some time. The appellant sought to controvert the statement of the Government that the decision had been taken to make the appointments on March 31, 1965. But we do not think there is any substance in that contention. It would, thus follow that while respondents 5 and 6 were eligible for appointment as lecturers on5 the appellant was not and, therefore, he cannot be regarded as aggrieved for the purpose of the relief claimed by him.
|
S. Rm. Ct. Pl. Palani Appa Chettiar Vs. The Commissioner Of Income-Tax, Madras | had any. The Articles of Association of the Company provided for the appointment as managing director of the very person who, as the Karta of the family, had promoted the Company. The acquisition of the business, the floatation of the Company and appointment of the managing director appear to us to be inseparably linked together The joint family assets were used for acquiring the concern and for financing it and in lieu of all that detriment to the joint family properties the joint family got not only the shares standing in the names of two members of the family but also, as part and parcel of the scheme, the managing directorship of the company when incorporated.The recitals in the agreement also clearly point to the fact of B. K. Rohatgi having been appointed managing director because of his being a promoter of the company and having actually taken over the concern of India Electric works from Mikhi Ram and others. The finding in this case is that the promotion of the Company and the taking over of the concern and the financing of it were all done with the help of the joint family funds and the said B. K. Rohatgi did not contribute anything out of his personal funds if any In the circumstances, we are clearly of opinion that the managing directors remuneration received by B. K. Rohatgi was, as between him and the Hindu Undivided Family, the income of the latter and should be assessed in its hands."Now, what are the facts found by the Appellate Tribunal in the present case? In 1934, the joint family had acquired 90 shares out of the 300 shares of the company. The shares were acquired with the funds of the Hindu Undivided Family of which the father was the Karta. On the demise of one of the directors, the assessee became a director in 1941 and on the death of another director who was managing the business the assessee became the Managing Director with effect from 1942. It is apparent therefore that the joint family had control only of 90 out of 300 shares and the shares were purchased in the ordinary course of business and not for the purpose of qualification of the karta to become a director. The shares were purchased in 1934, about 8 years before the Karta was appointed as the managing director. It is apparent that the shares were purchased by the joint family not with the object that the Karta should become the managing director but in the ordinary course of investment. To put it differently, there was no real connection between the investment of joint family funds in the Purchase of the shares and the appointment of the Karta as managing director of the company. Applying the doctrine of Hindu law, the remuneration of the managing director was not earned by any detriment to the joint family assets. We are therefore of the opinion that the High Court was in error in holding that the present case falls within the principle of the decision of this Court in l960-l SCR 320 - (AIR 1959 SC 1289 ). On the contrary, we are of the opinion that the present case bears analogy to the decision of this Court in 1960-3 SCR 669 = (AIR 1960 SC 997 ). In that case a member of a Hindu Undivided Family had furnished as a security the properties of the family under an agreement whereby he was appointed treasurer of a bank. Remuneration received by the manager of the family for working as a treasurer was claimed to be income of the Hindu Undivided Family, because the properties of the family were furnished as security, but this claim was rejected by this Court on the ground that there was no detriment and risk to the joint family property and the emoluments of the treasurer could not be treated as an accretion to the income of the Hindu Undivided Family. We consider it also necessary to state that the decision of Madras High Court in 195018 ITR 194 = (AIR 1950 Mad 610 ) was not impliedly overruled by this Court in 1960-1 SCR 320 = (AIR 1959 SC 1289 ). It was merely pointed out that the material facts of that case were different from those of Kalu Babu Lal Chands case, 1960-1 SCR 320 = (AIR 1959 SC 1289 ). It was, for instance, found in 1950-18 ITR 194 = (AIR 1950 Mad 610 ) that the remuneration of the managing director was earned by rendering services to the bank and no part of the Family funds was utilised except that the necessary shares to acquire the qualification of a managing director were purchased out of joint family funds. It was held that there was no detriment to the family property in any manner or to any extent. In view of this finding it follows that the remuneration of the managing director could not be treated as an accretion to the income of the joint family and taxed in its hands. The process of reasoning of the Madras High Court in 1950-18 ITR 194 = (AIR 1950 Mad 610 ) may be open to criticism and may not be sound but,in our opinion, the actual decision in that case is correct and is supported by the principle that there is no detriment to the family property and no part of the family funds had been spent or utilised for acquiring the remuneration of the managing director.The facts in the present case are almost parallel to those in 1950-18 ITR 194 = (AIR 1950 Mad 610 ) and there is no detriment to the joint family assets and no part of the joint family property was spent in earning the remuneration or making the acquisition. It therefore follows that the principle of the decision in 1960-1 SCR 320 = (AIR 1959 SC 1289 ) cannot be applied for deciding the question presented for determination in this case. | 1[ds]Applying the doctrine of Hindu law, the remuneration of the managing director was not earned by any detriment to the joint family assets. We are therefore of the opinion that the High Court was in error in holding that the present case falls within the principle of the decision of this Court in l960-l SCR 320 - (AIR 1959 SC 1289 ). On the contrary, we are of the opinion that the present case bears analogy to the decision of this Court in 1960-3 SCR 669 = (AIR 1960 SC 997 ). In that case a member of a Hindu Undivided Family had furnished as a security the properties of the family under an agreement whereby he was appointed treasurer of a bank. Remuneration received by the manager of the family for working as a treasurer was claimed to be income of the Hindu Undivided Family, because the properties of the family were furnished as security, but this claim was rejected by this Court on the ground that there was no detriment and risk to the joint family property and the emoluments of the treasurer could not be treated as an accretion to the income of the Hindu Undivided Family. We consider it also necessary to state that the decision of Madras High Court in 195018 ITR 194 = (AIR 1950 Mad 610 ) was not impliedly overruled by this Court in 1960-1 SCR 320 = (AIR 1959 SC 1289 ). It was merely pointed out that the material facts of that case were different from those of Kalu Babu Lal Chands case, 1960-1 SCR 320 = (AIR 1959 SC 1289 ). It was, for instance, found in 1950-18 ITR 194 = (AIR 1950 Mad 610 ) that the remuneration of the managing director was earned by rendering services to the bank and no part of the Family funds was utilised except that the necessary shares to acquire the qualification of a managing director were purchased out of joint family funds. It was held that there was no detriment to the family property in any manner or to any extent. In view of this finding it follows that the remuneration of the managing director could not be treated as an accretion to the income of the joint family and taxed in its hands. The process of reasoning of the Madras High Court in 1950-18 ITR 194 = (AIR 1950 Mad 610 ) may be open to criticism and may not be sound but,in our opinion, the actual decision in that case is correct and is supported by the principle that there is no detriment to the family property and no part of the family funds had been spent or utilised for acquiring the remuneration of the managing director.The facts in the present case are almost parallel to those in 1950-18 ITR 194 = (AIR 1950 Mad 610 ) and there is no detriment to the joint family assets and no part of the joint family property was spent in earning the remuneration or making the acquisition. It therefore follows that the principle of the decision in 1960-1 SCR 320 = (AIR 1959 SC 1289 ) cannot be applied for deciding the question presented for determination in this case. | 1 | 2,544 | 574 | ### 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:
had any. The Articles of Association of the Company provided for the appointment as managing director of the very person who, as the Karta of the family, had promoted the Company. The acquisition of the business, the floatation of the Company and appointment of the managing director appear to us to be inseparably linked together The joint family assets were used for acquiring the concern and for financing it and in lieu of all that detriment to the joint family properties the joint family got not only the shares standing in the names of two members of the family but also, as part and parcel of the scheme, the managing directorship of the company when incorporated.The recitals in the agreement also clearly point to the fact of B. K. Rohatgi having been appointed managing director because of his being a promoter of the company and having actually taken over the concern of India Electric works from Mikhi Ram and others. The finding in this case is that the promotion of the Company and the taking over of the concern and the financing of it were all done with the help of the joint family funds and the said B. K. Rohatgi did not contribute anything out of his personal funds if any In the circumstances, we are clearly of opinion that the managing directors remuneration received by B. K. Rohatgi was, as between him and the Hindu Undivided Family, the income of the latter and should be assessed in its hands."Now, what are the facts found by the Appellate Tribunal in the present case? In 1934, the joint family had acquired 90 shares out of the 300 shares of the company. The shares were acquired with the funds of the Hindu Undivided Family of which the father was the Karta. On the demise of one of the directors, the assessee became a director in 1941 and on the death of another director who was managing the business the assessee became the Managing Director with effect from 1942. It is apparent therefore that the joint family had control only of 90 out of 300 shares and the shares were purchased in the ordinary course of business and not for the purpose of qualification of the karta to become a director. The shares were purchased in 1934, about 8 years before the Karta was appointed as the managing director. It is apparent that the shares were purchased by the joint family not with the object that the Karta should become the managing director but in the ordinary course of investment. To put it differently, there was no real connection between the investment of joint family funds in the Purchase of the shares and the appointment of the Karta as managing director of the company. Applying the doctrine of Hindu law, the remuneration of the managing director was not earned by any detriment to the joint family assets. We are therefore of the opinion that the High Court was in error in holding that the present case falls within the principle of the decision of this Court in l960-l SCR 320 - (AIR 1959 SC 1289 ). On the contrary, we are of the opinion that the present case bears analogy to the decision of this Court in 1960-3 SCR 669 = (AIR 1960 SC 997 ). In that case a member of a Hindu Undivided Family had furnished as a security the properties of the family under an agreement whereby he was appointed treasurer of a bank. Remuneration received by the manager of the family for working as a treasurer was claimed to be income of the Hindu Undivided Family, because the properties of the family were furnished as security, but this claim was rejected by this Court on the ground that there was no detriment and risk to the joint family property and the emoluments of the treasurer could not be treated as an accretion to the income of the Hindu Undivided Family. We consider it also necessary to state that the decision of Madras High Court in 195018 ITR 194 = (AIR 1950 Mad 610 ) was not impliedly overruled by this Court in 1960-1 SCR 320 = (AIR 1959 SC 1289 ). It was merely pointed out that the material facts of that case were different from those of Kalu Babu Lal Chands case, 1960-1 SCR 320 = (AIR 1959 SC 1289 ). It was, for instance, found in 1950-18 ITR 194 = (AIR 1950 Mad 610 ) that the remuneration of the managing director was earned by rendering services to the bank and no part of the Family funds was utilised except that the necessary shares to acquire the qualification of a managing director were purchased out of joint family funds. It was held that there was no detriment to the family property in any manner or to any extent. In view of this finding it follows that the remuneration of the managing director could not be treated as an accretion to the income of the joint family and taxed in its hands. The process of reasoning of the Madras High Court in 1950-18 ITR 194 = (AIR 1950 Mad 610 ) may be open to criticism and may not be sound but,in our opinion, the actual decision in that case is correct and is supported by the principle that there is no detriment to the family property and no part of the family funds had been spent or utilised for acquiring the remuneration of the managing director.The facts in the present case are almost parallel to those in 1950-18 ITR 194 = (AIR 1950 Mad 610 ) and there is no detriment to the joint family assets and no part of the joint family property was spent in earning the remuneration or making the acquisition. It therefore follows that the principle of the decision in 1960-1 SCR 320 = (AIR 1959 SC 1289 ) cannot be applied for deciding the question presented for determination in this case.
### Response:
1
### Explanation:
Applying the doctrine of Hindu law, the remuneration of the managing director was not earned by any detriment to the joint family assets. We are therefore of the opinion that the High Court was in error in holding that the present case falls within the principle of the decision of this Court in l960-l SCR 320 - (AIR 1959 SC 1289 ). On the contrary, we are of the opinion that the present case bears analogy to the decision of this Court in 1960-3 SCR 669 = (AIR 1960 SC 997 ). In that case a member of a Hindu Undivided Family had furnished as a security the properties of the family under an agreement whereby he was appointed treasurer of a bank. Remuneration received by the manager of the family for working as a treasurer was claimed to be income of the Hindu Undivided Family, because the properties of the family were furnished as security, but this claim was rejected by this Court on the ground that there was no detriment and risk to the joint family property and the emoluments of the treasurer could not be treated as an accretion to the income of the Hindu Undivided Family. We consider it also necessary to state that the decision of Madras High Court in 195018 ITR 194 = (AIR 1950 Mad 610 ) was not impliedly overruled by this Court in 1960-1 SCR 320 = (AIR 1959 SC 1289 ). It was merely pointed out that the material facts of that case were different from those of Kalu Babu Lal Chands case, 1960-1 SCR 320 = (AIR 1959 SC 1289 ). It was, for instance, found in 1950-18 ITR 194 = (AIR 1950 Mad 610 ) that the remuneration of the managing director was earned by rendering services to the bank and no part of the Family funds was utilised except that the necessary shares to acquire the qualification of a managing director were purchased out of joint family funds. It was held that there was no detriment to the family property in any manner or to any extent. In view of this finding it follows that the remuneration of the managing director could not be treated as an accretion to the income of the joint family and taxed in its hands. The process of reasoning of the Madras High Court in 1950-18 ITR 194 = (AIR 1950 Mad 610 ) may be open to criticism and may not be sound but,in our opinion, the actual decision in that case is correct and is supported by the principle that there is no detriment to the family property and no part of the family funds had been spent or utilised for acquiring the remuneration of the managing director.The facts in the present case are almost parallel to those in 1950-18 ITR 194 = (AIR 1950 Mad 610 ) and there is no detriment to the joint family assets and no part of the joint family property was spent in earning the remuneration or making the acquisition. It therefore follows that the principle of the decision in 1960-1 SCR 320 = (AIR 1959 SC 1289 ) cannot be applied for deciding the question presented for determination in this case.
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J. B. Advani and Company Private Limited Vs. R. D. Shah, Commissioner of Income Tax, Bombay | Assistant Commissioner who held that the loss in question was not a speculative loss and it could be set off against the income from the other business of the company. The Income-tax Officer filed an appeal to the Appellate Tribunal and, at the time of the hearing of the appeal for the assessment year 1953-54, the departmental representative sought permission to raise a new point, namely, that the loss in jute was not allowable in the assessment year 1953-54 as the settlement were made in March, 1952. which would be relevant for the assessment year 1952-53. The Tribunal permitted the department to raise this point and allowed the departments appeal. The company bad submitted returns for the two assessment years 1952-53 and 1953-54 on March 3, 1953, and March 6, 1954, respectively. The assessment for the assessment year 1952-53 was completed on January 21, 1956, and for the assessment year 1953-54 on February 27, 1958. After the decision of the Tribunal for the assessment year 1953-54, which was given on July 7, 1964, the company filed an application dated August 21, 1964, before the Commissioner of Income-tax under section 33A of the Act giving all these facts and pointing out that the Tribunal had itself realised the disadvantage to which the assessee would be put by the new point having been allowed to be raised and the appeal having been decided on that point with regard to the assessment year 1953-54. It was emphasised in this application that the revision of the Income-tax Officers order for the assessment year 1952-53 became necessary as, admittedly, the loss to the tune of Rs. 4, 71, 375 had been suffered by the company which it had sought to set off during the assessment year 1953-54. The Commissioner of Income-tax made an order on April 24, 1965, dismissing the application on the ground already mentionedThe learned counsel for the appellant-company has laid a great deal of stress on the hardship involved in the case. It can hardly be gainsaid that the company, even according to the order of the Tribunal, could have claimed a set-off of the loss in question during the assessment year 1952-53. It was only for the first time before the Tribunal during the hearing of the appeal relating to the assessment year 1953-54 that the question was raised on behalf of the department that this loss was not allowable in the assessment year 1953-54. The company had, for good reasons, thought that, since the payment which had been made in settlement of contracts were recorded in the books for the year ending March 31, 1953, the loss was claimable during the assessment year 1953-54. The company had a good case for invoking the revisional jurisdiction of the Commissioner under section 33A of the Act. Unfortunately the company did not disclose any ground whatsoever for the delay between July 7, 1964, when the order of the Tribunal was announced and the date of the application, which was August 21, 1964. According to sub-section (2) of section 33A the Commissioner may, on an application by an assessee for revision of an order passed by any authority subordinate to him, made within one year from the date of the order or within such further period as the Commissioner may think fit to allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period, call for the record of the proceedings and make such order as he may think fit subject to certain restrictions which it is unnecessary to mention. The company, in the present case, can be said to have been prevented for sufficient cause from making an application under section 33A within a period of one from the date of the order of the Income-tax Officer in respect of the assessment year 1952-53 because of the decision of the Tribunal in respect of the assessment year 1953-54 in which for the first time the department was allowed to raise a pew point as a result of which it was held that the company was entitled to set off the loss in question during the assessment year 1952-53 and not 1953-54. The serious hurdle in the way of the company is the period between the decision of the Tribunal and the date of the application (from July 7, 1964, to August 21, 1964). The application which was filed under section 33A of the Act is completely barren of any explanation for this delay which had to be properly and satisfactorily explained. In Sitaram Ramcharan v. M. N. Nagarshana, while considering the question of condonation of delay with reference to the second proviso to section 15(2) of the Payment of Wages Act, it was observed by this court" The proviso with which we are concerned has prescribed the limitation of six months for the institutition of the application itself, and so the principle laid down in Lingleys case can have no application to the question which we have to decide. Indeed the present proviso is in substance similar to the provision in section 5 of the Limitation Act and Mr. Phadka has fairly conceded that there is consensus of judicial opinion on the question of the construction of section 5. It cannot be disputed that, in dealing with the question of condoning delay under section 5 of the Limitation Act, the party has to satisfy the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay (vide Ram Narain Joshi v. Parameshwar Narain Mehta ). Therefore, the finding recorded by the authority that the appellants have failed to establish sufficient cause for their inaction between May 2, 1952, and the respective dates on which they filed their present applications is fatal to their claim2. These observations are fully applicable to the facts of the present case. | 0[ds]The learned counsel for thes laid a great deal of stress on the hardship involved in the case.It can hardly be gainsaid that the company, even according to the order of the Tribunal, could have claimed aof the loss in question during the assessment yearIt was only for the first time before the Tribunal during the hearing of the appeal relating to the assessment yearthat the question was raised on behalf of the department that this loss was not allowable in the assessment yearThe company had, for good reasons, thought that, since the payment which had been made in settlement of contracts were recorded in the books for the year ending March 31, 1953, the loss was claimable during the assessment yearThe company had a good case for invoking the revisional jurisdiction of the Commissioner under section 33A of the Act. Unfortunately the company did not disclose any ground whatsoever for the delay between July 7, 1964, when the order of the Tribunal was announced and the date of the application, which was August 21, 1964. According to(2) of section 33A the Commissioner may, on an application by an assessee for revision of an order passed by any authority subordinate to him, made within one year from the date of the order or within such further period as the Commissioner may think fit to allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period, call for the record of the proceedings and make such order as he may think fit subject to certain restrictions which it is unnecessary to mention. The company, in the present case, can be said to have been prevented for sufficient cause from making an application under section 33A within a period of one from the date of the order of theOfficer in respect of the assessment yearbecause of the decision of the Tribunal in respect of the assessment yearin which for the first time the department was allowed to raise a pew point as a result of which it was held that the company was entitled to set off the loss in question during the assessment year54. The serious hurdle in the way of the company is the period between the decision of the Tribunal and the date of the application (from July 7, 1964, to August 21, 1964). The application which was filed under section 33A of the Act is completely barren of any explanation for this delay which had to be properly and satisfactorily explained. In Sitaram Ramcharan v. M. N. Nagarshana, while considering the question of condonation of delay with reference to the second proviso to section 15(2) of the Payment of Wages Act, it was observed by this court" The proviso with which we are concerned has prescribed the limitation of six months for the institutition of the application itself, and so the principle laid down in Lingleys case can have no application to the question which we have to decide. Indeed the present proviso is in substance similar to the provision in section 5 of the Limitation Act and Mr. Phadka has fairly conceded that there is consensus of judicial opinion on the question of the construction of section 5. It cannot be disputed that, in dealing with the question of condoning delay under section 5 of the Limitation Act, the party has to satisfy the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay (vide Ram Narain Joshi v. Parameshwar Narain Mehta ). Therefore, the finding recorded by the authority that the appellants have failed to establish sufficient cause for their inaction between May 2, 1952, and the respective dates on which they filed their present applications is fatal to their claim2. These observations are fully applicable to the facts of the present case. | 0 | 1,409 | 719 | ### 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:
Assistant Commissioner who held that the loss in question was not a speculative loss and it could be set off against the income from the other business of the company. The Income-tax Officer filed an appeal to the Appellate Tribunal and, at the time of the hearing of the appeal for the assessment year 1953-54, the departmental representative sought permission to raise a new point, namely, that the loss in jute was not allowable in the assessment year 1953-54 as the settlement were made in March, 1952. which would be relevant for the assessment year 1952-53. The Tribunal permitted the department to raise this point and allowed the departments appeal. The company bad submitted returns for the two assessment years 1952-53 and 1953-54 on March 3, 1953, and March 6, 1954, respectively. The assessment for the assessment year 1952-53 was completed on January 21, 1956, and for the assessment year 1953-54 on February 27, 1958. After the decision of the Tribunal for the assessment year 1953-54, which was given on July 7, 1964, the company filed an application dated August 21, 1964, before the Commissioner of Income-tax under section 33A of the Act giving all these facts and pointing out that the Tribunal had itself realised the disadvantage to which the assessee would be put by the new point having been allowed to be raised and the appeal having been decided on that point with regard to the assessment year 1953-54. It was emphasised in this application that the revision of the Income-tax Officers order for the assessment year 1952-53 became necessary as, admittedly, the loss to the tune of Rs. 4, 71, 375 had been suffered by the company which it had sought to set off during the assessment year 1953-54. The Commissioner of Income-tax made an order on April 24, 1965, dismissing the application on the ground already mentionedThe learned counsel for the appellant-company has laid a great deal of stress on the hardship involved in the case. It can hardly be gainsaid that the company, even according to the order of the Tribunal, could have claimed a set-off of the loss in question during the assessment year 1952-53. It was only for the first time before the Tribunal during the hearing of the appeal relating to the assessment year 1953-54 that the question was raised on behalf of the department that this loss was not allowable in the assessment year 1953-54. The company had, for good reasons, thought that, since the payment which had been made in settlement of contracts were recorded in the books for the year ending March 31, 1953, the loss was claimable during the assessment year 1953-54. The company had a good case for invoking the revisional jurisdiction of the Commissioner under section 33A of the Act. Unfortunately the company did not disclose any ground whatsoever for the delay between July 7, 1964, when the order of the Tribunal was announced and the date of the application, which was August 21, 1964. According to sub-section (2) of section 33A the Commissioner may, on an application by an assessee for revision of an order passed by any authority subordinate to him, made within one year from the date of the order or within such further period as the Commissioner may think fit to allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period, call for the record of the proceedings and make such order as he may think fit subject to certain restrictions which it is unnecessary to mention. The company, in the present case, can be said to have been prevented for sufficient cause from making an application under section 33A within a period of one from the date of the order of the Income-tax Officer in respect of the assessment year 1952-53 because of the decision of the Tribunal in respect of the assessment year 1953-54 in which for the first time the department was allowed to raise a pew point as a result of which it was held that the company was entitled to set off the loss in question during the assessment year 1952-53 and not 1953-54. The serious hurdle in the way of the company is the period between the decision of the Tribunal and the date of the application (from July 7, 1964, to August 21, 1964). The application which was filed under section 33A of the Act is completely barren of any explanation for this delay which had to be properly and satisfactorily explained. In Sitaram Ramcharan v. M. N. Nagarshana, while considering the question of condonation of delay with reference to the second proviso to section 15(2) of the Payment of Wages Act, it was observed by this court" The proviso with which we are concerned has prescribed the limitation of six months for the institutition of the application itself, and so the principle laid down in Lingleys case can have no application to the question which we have to decide. Indeed the present proviso is in substance similar to the provision in section 5 of the Limitation Act and Mr. Phadka has fairly conceded that there is consensus of judicial opinion on the question of the construction of section 5. It cannot be disputed that, in dealing with the question of condoning delay under section 5 of the Limitation Act, the party has to satisfy the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay (vide Ram Narain Joshi v. Parameshwar Narain Mehta ). Therefore, the finding recorded by the authority that the appellants have failed to establish sufficient cause for their inaction between May 2, 1952, and the respective dates on which they filed their present applications is fatal to their claim2. These observations are fully applicable to the facts of the present case.
### Response:
0
### Explanation:
The learned counsel for thes laid a great deal of stress on the hardship involved in the case.It can hardly be gainsaid that the company, even according to the order of the Tribunal, could have claimed aof the loss in question during the assessment yearIt was only for the first time before the Tribunal during the hearing of the appeal relating to the assessment yearthat the question was raised on behalf of the department that this loss was not allowable in the assessment yearThe company had, for good reasons, thought that, since the payment which had been made in settlement of contracts were recorded in the books for the year ending March 31, 1953, the loss was claimable during the assessment yearThe company had a good case for invoking the revisional jurisdiction of the Commissioner under section 33A of the Act. Unfortunately the company did not disclose any ground whatsoever for the delay between July 7, 1964, when the order of the Tribunal was announced and the date of the application, which was August 21, 1964. According to(2) of section 33A the Commissioner may, on an application by an assessee for revision of an order passed by any authority subordinate to him, made within one year from the date of the order or within such further period as the Commissioner may think fit to allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period, call for the record of the proceedings and make such order as he may think fit subject to certain restrictions which it is unnecessary to mention. The company, in the present case, can be said to have been prevented for sufficient cause from making an application under section 33A within a period of one from the date of the order of theOfficer in respect of the assessment yearbecause of the decision of the Tribunal in respect of the assessment yearin which for the first time the department was allowed to raise a pew point as a result of which it was held that the company was entitled to set off the loss in question during the assessment year54. The serious hurdle in the way of the company is the period between the decision of the Tribunal and the date of the application (from July 7, 1964, to August 21, 1964). The application which was filed under section 33A of the Act is completely barren of any explanation for this delay which had to be properly and satisfactorily explained. In Sitaram Ramcharan v. M. N. Nagarshana, while considering the question of condonation of delay with reference to the second proviso to section 15(2) of the Payment of Wages Act, it was observed by this court" The proviso with which we are concerned has prescribed the limitation of six months for the institutition of the application itself, and so the principle laid down in Lingleys case can have no application to the question which we have to decide. Indeed the present proviso is in substance similar to the provision in section 5 of the Limitation Act and Mr. Phadka has fairly conceded that there is consensus of judicial opinion on the question of the construction of section 5. It cannot be disputed that, in dealing with the question of condoning delay under section 5 of the Limitation Act, the party has to satisfy the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay (vide Ram Narain Joshi v. Parameshwar Narain Mehta ). Therefore, the finding recorded by the authority that the appellants have failed to establish sufficient cause for their inaction between May 2, 1952, and the respective dates on which they filed their present applications is fatal to their claim2. These observations are fully applicable to the facts of the present case.
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Debashu Services Private Limited Vs. Deputy Commissioner of Income Tax, Circle 1 & Others | by the AO nowhere state that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year. It is needless to mention that the reasons are required to be read as they were recorded by the AO. No substitution or deletion is permissible. No additions can be made to those reasons. No inference can be allowed to be drawn based on reasons not recorded. It is for the AO to disclose and open his mind through reasons recorded by him. He has to speak through his reasons. It is for the AO to reach to the conclusion as to whether there was failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the concerned assessment year. It is for the AO to form his opinion. It is for him to put his opinion on record in black and white. The reasons recorded should be clear and unambiguous and should not suffer from any vagueness. The reasons recorded must disclose his mind. Reasons are the manifestation of the mind of the AO. The reasons recorded should be self-explanatory and should not keep the assessee guessing for the reasons. Reasons provide the link between conclusion and evidence. The reasons recorded must be based on evidence. The AO, in the event of challenge to the reasons, must be able to justify the same based on material available on record. He must disclose in the reasons as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish the vital link between the reasons and evidence. That vital link is the safeguard against arbitrary reopening of the concluded assessment. The reasons recorded by the AO cannot be supplemented by filing an affidavit or making an oral submission, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches the Court, on the strength of affidavit or oral submissions advanced.Looking to the facts of the present case the observations recorded and the view taken by the Division Bench as above may also not be of any help to advance the case of the petitioner further. The Devision Bench of this Court set aside the impugned notices in the said cases on the ground that the reasons recorded by the A.O. were nowhere stating that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year and the second reason for setting aside the notices was that the impugned notices were beyond the period of 4 years from the end of A.Y. 1996 1997. It was also recorded by the Court that the A.O. had no jurisdiction to reopen the assessment proceedings which were concluded on the basis of assessment under Section 143(3) of the Act. In the present matters we have already noticed that the reasons which were communicated to the petitioner along with covering letter dated 8/8/2013 contain sufficient particulars. Moreover, in the reasons so communicated, the A.O. has expressly mentioned that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of those assessment years.35. The decision of the Honble Apex Court in Chhugmal Rajpal V/s. S.P. Chaliha and Ors. reported at (1971) 79 ITR 306 (SC) was also pressed in service by the learned counsel for the petitioner to urge that in the impugned reassessment notices under Section 148, since, the A.O. has not set out any reason for coming to the conclusion that it is a fit case to issue notice, both the notices are liable to be quashed. On the face of the contents of the impugned notices the argument so made by the petitioner is liable to be rejected. We have already noted that in the reasons supplied to the petitioner the A.O. has clearly recorded his opinion that he has reason to believe that the income has escaped assessment by the reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment.36. After having thoroughly considered the pleadings of the parties the resulting position according to us is:(i) that the reasons were recorded before issuance of the impugned notices;(ii) that no malafides seen in the delay caused in communicating the said reasons;(iii) that the facts revealed to the Assessing Officer during the assessment proceedings for A.Y. 2010 2011 is an information contemplated by Section 147 of the Act;(iv) that the information so revealed pertains to the assessment years to which the impugned notices relate;(v) that the said information has direct nexus and/or live link with the tax liability for A.Y. year 2006 2007 and A.Y. 2008 2009;(vi) that the material in the hands of A.O. is prima facie sufficient for him to form a belief that income had escaped assessment of the assessment years to which the impugned notices relate and therefore, reassessment is needed;(vii) that the issuance of impugned notices is not an outcome of change in opinion of the successor Assessing Officer but is based on tangible material received to him during the assessment proceedings of the subsequent year.37. The other two objections raised by the petitioner, first about the competence of respondent no.1 to issue the impugned notice and the other that the impugned action is beyond the period of limitation are kept open to be agitated before the appropriate authority.38. In view of the above, we do not find any fault with the impugned notices. It does not appear to us that the respondents have committed any illegality in initiating an action against the petitioner of reopening the assessment for A.Y. 2006 2007 and A.Y. 2008 2009. No case is made out by the petitioner to interfere in the action so initiated. | 0[ds]Looking to the facts of the present case the observations recorded and the view taken by the Division Bench as above may also not be of any help to advance the case of the petitioner further. The Devision Bench of this Court set aside the impugned notices in the said cases on the ground that the reasons recorded by the A.O. were nowhere stating that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year and the second reason for setting aside the notices was that the impugned notices were beyond the period of 4 years from the end of A.Y. 1996 1997. It was also recorded by the Court that the A.O. had no jurisdiction toreopen the assessmentproceedings which were concluded on the basis of assessment under Section 143(3) of the Act. In the present matters we have already noticed that the reasons which were communicated to the petitioner along with covering letter dated 8/8/2013 contain sufficient particulars. Moreover, in the reasons so communicated, the A.O. has expressly mentioned that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of those assessment years.35. The decision of the Honble Apex Court in Chhugmal Rajpal V/s. S.P. Chaliha and Ors. reported at (1971) 79 ITR 306 (SC) was also pressed in service by the learned counsel for the petitioner to urge that in the impugned reassessment notices under Section 148, since, the A.O. has not set out any reason for coming to the conclusion that it is a fit case to issue notice, both the notices are liable to be quashed. On the face of the contents of the impugned notices the argument so made by the petitioner is liable to be rejected. We have already noted that in the reasons supplied to the petitioner the A.O. has clearly recorded his opinion that he has reason to believe that the income has escaped assessment by the reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment.36. After having thoroughly considered the pleadings of the parties the resulting position according to us is:(i) that the reasons were recorded before issuance of the impugned notices;(ii) that no malafides seen in the delay caused in communicating the said reasons;(iii) that the facts revealed to the Assessing Officer during the assessment proceedings for A.Y. 20102011 is ancontemplated by Section 147 of the Act;(iv) that the information so revealed pertains to the assessment years to which the impugned notices relate;(v) that the said information has direct nexus and/or live link with the tax liability for A.Y. year 20062007 and A.Y. 20082009;(vi) that the material in the hands of A.O. is prima facie sufficient for him to form a belief that income had escaped assessment of the assessment years to which the impugned notices relate and therefore, reassessment is needed;(vii) that the issuance of impugned notices is not an outcome of change in opinion of the successor Assessing Officer but is based on tangible material received to him during the assessment proceedings of the subsequent year.37. The other two objections raised by the petitioner, first about the competence of respondent no.1 to issue the impugned notice and the other that the impugned action is beyond the period of limitation are kept open to be agitated before the appropriate authority.38. In view of the above, we do not find any fault with the impugned notices. It does not appear to us that the respondents have committed any illegality in initiating an action against the petitioner of reopening the assessmentfor A.Y. 20067 and A.Y. 20082009. No case is made out by the petitioner to interfere in the action so initiated. | 0 | 9,388 | 715 | ### 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:
by the AO nowhere state that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year. It is needless to mention that the reasons are required to be read as they were recorded by the AO. No substitution or deletion is permissible. No additions can be made to those reasons. No inference can be allowed to be drawn based on reasons not recorded. It is for the AO to disclose and open his mind through reasons recorded by him. He has to speak through his reasons. It is for the AO to reach to the conclusion as to whether there was failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the concerned assessment year. It is for the AO to form his opinion. It is for him to put his opinion on record in black and white. The reasons recorded should be clear and unambiguous and should not suffer from any vagueness. The reasons recorded must disclose his mind. Reasons are the manifestation of the mind of the AO. The reasons recorded should be self-explanatory and should not keep the assessee guessing for the reasons. Reasons provide the link between conclusion and evidence. The reasons recorded must be based on evidence. The AO, in the event of challenge to the reasons, must be able to justify the same based on material available on record. He must disclose in the reasons as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish the vital link between the reasons and evidence. That vital link is the safeguard against arbitrary reopening of the concluded assessment. The reasons recorded by the AO cannot be supplemented by filing an affidavit or making an oral submission, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches the Court, on the strength of affidavit or oral submissions advanced.Looking to the facts of the present case the observations recorded and the view taken by the Division Bench as above may also not be of any help to advance the case of the petitioner further. The Devision Bench of this Court set aside the impugned notices in the said cases on the ground that the reasons recorded by the A.O. were nowhere stating that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year and the second reason for setting aside the notices was that the impugned notices were beyond the period of 4 years from the end of A.Y. 1996 1997. It was also recorded by the Court that the A.O. had no jurisdiction to reopen the assessment proceedings which were concluded on the basis of assessment under Section 143(3) of the Act. In the present matters we have already noticed that the reasons which were communicated to the petitioner along with covering letter dated 8/8/2013 contain sufficient particulars. Moreover, in the reasons so communicated, the A.O. has expressly mentioned that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of those assessment years.35. The decision of the Honble Apex Court in Chhugmal Rajpal V/s. S.P. Chaliha and Ors. reported at (1971) 79 ITR 306 (SC) was also pressed in service by the learned counsel for the petitioner to urge that in the impugned reassessment notices under Section 148, since, the A.O. has not set out any reason for coming to the conclusion that it is a fit case to issue notice, both the notices are liable to be quashed. On the face of the contents of the impugned notices the argument so made by the petitioner is liable to be rejected. We have already noted that in the reasons supplied to the petitioner the A.O. has clearly recorded his opinion that he has reason to believe that the income has escaped assessment by the reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment.36. After having thoroughly considered the pleadings of the parties the resulting position according to us is:(i) that the reasons were recorded before issuance of the impugned notices;(ii) that no malafides seen in the delay caused in communicating the said reasons;(iii) that the facts revealed to the Assessing Officer during the assessment proceedings for A.Y. 2010 2011 is an information contemplated by Section 147 of the Act;(iv) that the information so revealed pertains to the assessment years to which the impugned notices relate;(v) that the said information has direct nexus and/or live link with the tax liability for A.Y. year 2006 2007 and A.Y. 2008 2009;(vi) that the material in the hands of A.O. is prima facie sufficient for him to form a belief that income had escaped assessment of the assessment years to which the impugned notices relate and therefore, reassessment is needed;(vii) that the issuance of impugned notices is not an outcome of change in opinion of the successor Assessing Officer but is based on tangible material received to him during the assessment proceedings of the subsequent year.37. The other two objections raised by the petitioner, first about the competence of respondent no.1 to issue the impugned notice and the other that the impugned action is beyond the period of limitation are kept open to be agitated before the appropriate authority.38. In view of the above, we do not find any fault with the impugned notices. It does not appear to us that the respondents have committed any illegality in initiating an action against the petitioner of reopening the assessment for A.Y. 2006 2007 and A.Y. 2008 2009. No case is made out by the petitioner to interfere in the action so initiated.
### Response:
0
### Explanation:
Looking to the facts of the present case the observations recorded and the view taken by the Division Bench as above may also not be of any help to advance the case of the petitioner further. The Devision Bench of this Court set aside the impugned notices in the said cases on the ground that the reasons recorded by the A.O. were nowhere stating that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year and the second reason for setting aside the notices was that the impugned notices were beyond the period of 4 years from the end of A.Y. 1996 1997. It was also recorded by the Court that the A.O. had no jurisdiction toreopen the assessmentproceedings which were concluded on the basis of assessment under Section 143(3) of the Act. In the present matters we have already noticed that the reasons which were communicated to the petitioner along with covering letter dated 8/8/2013 contain sufficient particulars. Moreover, in the reasons so communicated, the A.O. has expressly mentioned that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of those assessment years.35. The decision of the Honble Apex Court in Chhugmal Rajpal V/s. S.P. Chaliha and Ors. reported at (1971) 79 ITR 306 (SC) was also pressed in service by the learned counsel for the petitioner to urge that in the impugned reassessment notices under Section 148, since, the A.O. has not set out any reason for coming to the conclusion that it is a fit case to issue notice, both the notices are liable to be quashed. On the face of the contents of the impugned notices the argument so made by the petitioner is liable to be rejected. We have already noted that in the reasons supplied to the petitioner the A.O. has clearly recorded his opinion that he has reason to believe that the income has escaped assessment by the reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment.36. After having thoroughly considered the pleadings of the parties the resulting position according to us is:(i) that the reasons were recorded before issuance of the impugned notices;(ii) that no malafides seen in the delay caused in communicating the said reasons;(iii) that the facts revealed to the Assessing Officer during the assessment proceedings for A.Y. 20102011 is ancontemplated by Section 147 of the Act;(iv) that the information so revealed pertains to the assessment years to which the impugned notices relate;(v) that the said information has direct nexus and/or live link with the tax liability for A.Y. year 20062007 and A.Y. 20082009;(vi) that the material in the hands of A.O. is prima facie sufficient for him to form a belief that income had escaped assessment of the assessment years to which the impugned notices relate and therefore, reassessment is needed;(vii) that the issuance of impugned notices is not an outcome of change in opinion of the successor Assessing Officer but is based on tangible material received to him during the assessment proceedings of the subsequent year.37. The other two objections raised by the petitioner, first about the competence of respondent no.1 to issue the impugned notice and the other that the impugned action is beyond the period of limitation are kept open to be agitated before the appropriate authority.38. In view of the above, we do not find any fault with the impugned notices. It does not appear to us that the respondents have committed any illegality in initiating an action against the petitioner of reopening the assessmentfor A.Y. 20067 and A.Y. 20082009. No case is made out by the petitioner to interfere in the action so initiated.
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State Of U.P.(Now Uttarakhand) Vs. Rabindra Singh | the definition of "public premises" in the Public Premises Act deliberately excluded from its purview the land vesting in Gaon Sabha or some other local authority for which provisions existed in the law relating to land tenures and the provisions of Public Premises Act could not be pressed in service for ousting the tenure holder. More or less the same conclusion has been reached in Kripal Singhs case where the learned Judge specifically referred to the pleadings of the parties and came to the conclusion that the tenure holder therein was classified as Sirdar and had become a Bhumidar. The definition of "premises" in the Public Premises Act given under Section 2(b) came to be considered which is as under: "2(b) "Premises means any land (including any forest land or trees standing thereon, or covered by water, or a road maintained by the State Government or land appurtenant to such road) or any building and includes:i) the garden, grounds, and out-houses, if any appertaining to such building or part of a building, andii) any fitting or fixtures affixed to or any furniture supplied with such building or part of a building for the more beneficial enjoyment thereof:but does not include any land which for the time is held by a tenureholder under any law relating to land-tenture (emphasis supplied)i) is vested in or entrusted to the management, of Gaon Sabha or any other local authority orii) is held by a tenure holder under the United Provinces Tenancy Act, 1939, the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956, the Jaunsar-Bawar Zmindari Abolition and Land Reforms Act, 1956, the Kumaun and Uttarkhand Zamindari Abolition and Land Reforms Act, 1960, the Uttar Pradesh Consolidation of Holidings Act, 1953, or the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960;" Section 2(e) was also considered which is as under: "2(e) Public premises means any premises belonging to or taken on lease or requisitioned by or on behalf of the State Government and includes any premises belonging to or taken on lease by or on behalf ofi) any company definedii) any local authority;iii) any corporation (not being a company as defined in Section 3 of the Companies Act, 1956, or a local authority) owned or controlled by the State Government, oriv) any society................And also includesi) Nazul land or any other premises entrusted to the management of a local authority (including any building built with Government funds on land belonging to the State Government after the entrustment of the land to the local authority, not being land vested in or entrusted to the management of a Gaon Sabha or any other local authority under any law relating to land tenure);ii) any premises acquired under the Land Acquisition Act , 1894 with the consent of the State Government for a company (as defined in that Act) and held by that company under an agreement executed under Section 41 of that providing for re-entry by the State Government in certain conditions." Section 2(a) and 2(e) excluded the operation of Public Premises Act in respect of the lands covered by U.P. Zamindari Abolition and Land Reforms Act, 1950. The learned Judge has further given a detailed explanation as to why the said exclusion became clearer. The learned Judge states: "To me, it appears that the provision for excluding land of such tenure holders has a special purpose. For a tenure holder this land is generally a source of his and his familys livelihood particularly in our State of Uttar Pradesh where the majority of citizens consists of Agriculturist. Needless to say, the Act has a drastic method of ejectment. Though a trespasser can certainly be ejected under the common law - whether it be civil or revenue, the Act, however, sets aside those procedures and instead empowers the prescribed authority to proceed in a manner which lays down a much quicker and faster method of ejecting a trespasser. In the U.P. Z.A. and L.R. Act we find sufficient safeguards for the Gaon Sabha and other authorities to eject a trespasser, if the land can be claimed to have vested in them (see Section 122B) (Emphasis supplied by us). Thus the land of such tenure holders as the petitioner should not be governed by the provisions of the Act, appears to be one of the main objectives, to attain which the exception has been carved out in the definition clause by the legislature. Even from the other provisions of the Act it is clear that the possession alone whether of the original Adhivasi or of the transferee Adhivasi has to be seen by the Prescribed Authority and attempt to trace his title will be futile in the present proceedings under the Act. Under the circumstances it must be held that but for the stop which may be available under the land tenure laws, the provisions of the Act will be wholly inapplicable for the ejectment of the petitioner." 12. We have very carefully considered the judgments as well as the provisions and we are in no doubt that the view taken by the Allahabad High Court was a correct view of the matter. We fully agree with the reasons given by the Allahabad High Court in both Baldeo Raj and Kripal Singhs cases and, therefore, hold that the land covered under the U.P. Zamindari Abolition and Land Reforms Act, 1950 would not be governed by the Public Premises Act, more particularly in view of the specific exclusion as provided in Sections 2(b) and 2(e) thereof. Even if Section 2(e) is broadly read, the land held by Tenure holder is not covered. It is axiomatic that if the land held by a tenure-holder under any law relating to land tenure is not "premise", then it cannot become "public premises" under Section 2(e) of the Act. We are satisfied with the impugned judgments which wholly rely on the above mentioned two decisions of the Allahabad High Court. | 0[ds]9. Smt. Pinki Anand, learned Senior Advocate along with Shri P.N. Gupta and Shri Vaibhav Jain assailed the impugned judgments. We had a specific query to the learned Senior counsel as to whether the aforementioned relied upon judgments in Baldeo Rajs case (cited supra) and Kripal Singhs case (cited supra) were challenged by the said judgment. The learned Senior counsel was unable to answer as to what happened to these judgments. We, therefore, presume that those judgments are still held good law and have been accepted as such by at least the State of Uttar Pradesh. It must be noted that Baldev Rajs case (cited supra) continues to be dominating the scene since 1984 while Kripal Singhs case (cited supra) continues to be in the field from 1988. It, therefore, goes without saying that the interpretation put forward by the Allahabad High Court on these premises holds good for about 25 years on the legal scenario. We must, therefore, take this factor also into account as to whether it would be proper for us to disturb the settled law which is ruling the field for last 25 years.10. We have seen both the aforementioned decisions of the Allahabad High Court in Baldeo Rajs case as well as in Kripal Singhs case (cited supra). The factual situation regarding the position of the respondents is absolutely identical. Therefore, the High Court was right in holding that the law laid down in both these cases squarely apply to the facts of the present case.11. We will now proceed to decide upon the correctness of these two judgments. In Baldeo Rajs case the learned Single Judge considered the expression "public premises" in Section 2(e) of the Act as was amended by the U.P. Act No.28 of 1976. It was found that the definition as amended excluded the land vested in or entrusted to the management of a Gaon Sabha or any other local authority under any law relating to land tenures. This the learned Judge found on the basis of clause (i) of the definition in that Section. The learned Judge then straightaway came to the conclusion that the provisions contained in Section 4/6, U.P. Zamindari Abolition and Land Reforms Act provided that the right, title or interest of the intermediaries came to be vested in the State and State thereby also acquired right, title or interest over the land held as `Talab or `Jheel. The learned Judge further rightly found that Section 117, U.P. Zamindari Abolition and Land Reforms Act made it clear that the superintendence, management and control of such land was vested in Gaon Sabha. It was also noted that the State Government was empowered to transfer this superintendence, management and control from Gaon Sabha to some other local authority or vice versa. Relying on the Khatauni infasli the learned Judge found that the land in question was recorded as Talab/Jheel. The learned Judge further noted that the names of the petitioners in that cases were recorded in the Khasra of 1386 fasli under class 4 of the Khatauni. The learned Judge then proceeded to consider the provisions of Sectionwhich provided for the eviction against those who were in unauthorized occupation over such land. On that basis the learned Judge correctly came to the conclusion that the definition of "public premises" in the Public Premises Act deliberately excluded from its purview the land vesting in Gaon Sabha or some other local authority for which provisions existed in the law relating to land tenures and the provisions of Public Premises Act could not be pressed in service for ousting the tenure holder. More or less the same conclusion has been reached in Kripal Singhs case where the learned Judge specifically referred to the pleadings of the parties and came to the conclusion that the tenure holder therein was classified as Sirdar and had become a Bhumidar.We have very carefully considered the judgments as well as the provisions and we are in no doubt that the view taken by the Allahabad High Court was a correct view of the matter. We fully agree with the reasons given by the Allahabad High Court in both Baldeo Raj and Kripal Singhs cases and, therefore, hold that the land covered under the U.P. Zamindari Abolition and Land Reforms Act, 1950 would not be governed by the Public Premises Act, more particularly in view of the specific exclusion as provided in Sections 2(b) and 2(e) thereof. Even if Section 2(e) is broadly read, the land held by Tenure holder is not covered. It is axiomatic that if the land held by atenureholder under any law relating to landtenure is not "premise", then it cannot become "public premises" under Section 2(e) of the Act. We are satisfied with the impugned judgments which wholly rely on the above mentioned two decisions of the Allahabad High Court. | 0 | 3,015 | 902 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the definition of "public premises" in the Public Premises Act deliberately excluded from its purview the land vesting in Gaon Sabha or some other local authority for which provisions existed in the law relating to land tenures and the provisions of Public Premises Act could not be pressed in service for ousting the tenure holder. More or less the same conclusion has been reached in Kripal Singhs case where the learned Judge specifically referred to the pleadings of the parties and came to the conclusion that the tenure holder therein was classified as Sirdar and had become a Bhumidar. The definition of "premises" in the Public Premises Act given under Section 2(b) came to be considered which is as under: "2(b) "Premises means any land (including any forest land or trees standing thereon, or covered by water, or a road maintained by the State Government or land appurtenant to such road) or any building and includes:i) the garden, grounds, and out-houses, if any appertaining to such building or part of a building, andii) any fitting or fixtures affixed to or any furniture supplied with such building or part of a building for the more beneficial enjoyment thereof:but does not include any land which for the time is held by a tenureholder under any law relating to land-tenture (emphasis supplied)i) is vested in or entrusted to the management, of Gaon Sabha or any other local authority orii) is held by a tenure holder under the United Provinces Tenancy Act, 1939, the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956, the Jaunsar-Bawar Zmindari Abolition and Land Reforms Act, 1956, the Kumaun and Uttarkhand Zamindari Abolition and Land Reforms Act, 1960, the Uttar Pradesh Consolidation of Holidings Act, 1953, or the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960;" Section 2(e) was also considered which is as under: "2(e) Public premises means any premises belonging to or taken on lease or requisitioned by or on behalf of the State Government and includes any premises belonging to or taken on lease by or on behalf ofi) any company definedii) any local authority;iii) any corporation (not being a company as defined in Section 3 of the Companies Act, 1956, or a local authority) owned or controlled by the State Government, oriv) any society................And also includesi) Nazul land or any other premises entrusted to the management of a local authority (including any building built with Government funds on land belonging to the State Government after the entrustment of the land to the local authority, not being land vested in or entrusted to the management of a Gaon Sabha or any other local authority under any law relating to land tenure);ii) any premises acquired under the Land Acquisition Act , 1894 with the consent of the State Government for a company (as defined in that Act) and held by that company under an agreement executed under Section 41 of that providing for re-entry by the State Government in certain conditions." Section 2(a) and 2(e) excluded the operation of Public Premises Act in respect of the lands covered by U.P. Zamindari Abolition and Land Reforms Act, 1950. The learned Judge has further given a detailed explanation as to why the said exclusion became clearer. The learned Judge states: "To me, it appears that the provision for excluding land of such tenure holders has a special purpose. For a tenure holder this land is generally a source of his and his familys livelihood particularly in our State of Uttar Pradesh where the majority of citizens consists of Agriculturist. Needless to say, the Act has a drastic method of ejectment. Though a trespasser can certainly be ejected under the common law - whether it be civil or revenue, the Act, however, sets aside those procedures and instead empowers the prescribed authority to proceed in a manner which lays down a much quicker and faster method of ejecting a trespasser. In the U.P. Z.A. and L.R. Act we find sufficient safeguards for the Gaon Sabha and other authorities to eject a trespasser, if the land can be claimed to have vested in them (see Section 122B) (Emphasis supplied by us). Thus the land of such tenure holders as the petitioner should not be governed by the provisions of the Act, appears to be one of the main objectives, to attain which the exception has been carved out in the definition clause by the legislature. Even from the other provisions of the Act it is clear that the possession alone whether of the original Adhivasi or of the transferee Adhivasi has to be seen by the Prescribed Authority and attempt to trace his title will be futile in the present proceedings under the Act. Under the circumstances it must be held that but for the stop which may be available under the land tenure laws, the provisions of the Act will be wholly inapplicable for the ejectment of the petitioner." 12. We have very carefully considered the judgments as well as the provisions and we are in no doubt that the view taken by the Allahabad High Court was a correct view of the matter. We fully agree with the reasons given by the Allahabad High Court in both Baldeo Raj and Kripal Singhs cases and, therefore, hold that the land covered under the U.P. Zamindari Abolition and Land Reforms Act, 1950 would not be governed by the Public Premises Act, more particularly in view of the specific exclusion as provided in Sections 2(b) and 2(e) thereof. Even if Section 2(e) is broadly read, the land held by Tenure holder is not covered. It is axiomatic that if the land held by a tenure-holder under any law relating to land tenure is not "premise", then it cannot become "public premises" under Section 2(e) of the Act. We are satisfied with the impugned judgments which wholly rely on the above mentioned two decisions of the Allahabad High Court.
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9. Smt. Pinki Anand, learned Senior Advocate along with Shri P.N. Gupta and Shri Vaibhav Jain assailed the impugned judgments. We had a specific query to the learned Senior counsel as to whether the aforementioned relied upon judgments in Baldeo Rajs case (cited supra) and Kripal Singhs case (cited supra) were challenged by the said judgment. The learned Senior counsel was unable to answer as to what happened to these judgments. We, therefore, presume that those judgments are still held good law and have been accepted as such by at least the State of Uttar Pradesh. It must be noted that Baldev Rajs case (cited supra) continues to be dominating the scene since 1984 while Kripal Singhs case (cited supra) continues to be in the field from 1988. It, therefore, goes without saying that the interpretation put forward by the Allahabad High Court on these premises holds good for about 25 years on the legal scenario. We must, therefore, take this factor also into account as to whether it would be proper for us to disturb the settled law which is ruling the field for last 25 years.10. We have seen both the aforementioned decisions of the Allahabad High Court in Baldeo Rajs case as well as in Kripal Singhs case (cited supra). The factual situation regarding the position of the respondents is absolutely identical. Therefore, the High Court was right in holding that the law laid down in both these cases squarely apply to the facts of the present case.11. We will now proceed to decide upon the correctness of these two judgments. In Baldeo Rajs case the learned Single Judge considered the expression "public premises" in Section 2(e) of the Act as was amended by the U.P. Act No.28 of 1976. It was found that the definition as amended excluded the land vested in or entrusted to the management of a Gaon Sabha or any other local authority under any law relating to land tenures. This the learned Judge found on the basis of clause (i) of the definition in that Section. The learned Judge then straightaway came to the conclusion that the provisions contained in Section 4/6, U.P. Zamindari Abolition and Land Reforms Act provided that the right, title or interest of the intermediaries came to be vested in the State and State thereby also acquired right, title or interest over the land held as `Talab or `Jheel. The learned Judge further rightly found that Section 117, U.P. Zamindari Abolition and Land Reforms Act made it clear that the superintendence, management and control of such land was vested in Gaon Sabha. It was also noted that the State Government was empowered to transfer this superintendence, management and control from Gaon Sabha to some other local authority or vice versa. Relying on the Khatauni infasli the learned Judge found that the land in question was recorded as Talab/Jheel. The learned Judge further noted that the names of the petitioners in that cases were recorded in the Khasra of 1386 fasli under class 4 of the Khatauni. The learned Judge then proceeded to consider the provisions of Sectionwhich provided for the eviction against those who were in unauthorized occupation over such land. On that basis the learned Judge correctly came to the conclusion that the definition of "public premises" in the Public Premises Act deliberately excluded from its purview the land vesting in Gaon Sabha or some other local authority for which provisions existed in the law relating to land tenures and the provisions of Public Premises Act could not be pressed in service for ousting the tenure holder. More or less the same conclusion has been reached in Kripal Singhs case where the learned Judge specifically referred to the pleadings of the parties and came to the conclusion that the tenure holder therein was classified as Sirdar and had become a Bhumidar.We have very carefully considered the judgments as well as the provisions and we are in no doubt that the view taken by the Allahabad High Court was a correct view of the matter. We fully agree with the reasons given by the Allahabad High Court in both Baldeo Raj and Kripal Singhs cases and, therefore, hold that the land covered under the U.P. Zamindari Abolition and Land Reforms Act, 1950 would not be governed by the Public Premises Act, more particularly in view of the specific exclusion as provided in Sections 2(b) and 2(e) thereof. Even if Section 2(e) is broadly read, the land held by Tenure holder is not covered. It is axiomatic that if the land held by atenureholder under any law relating to landtenure is not "premise", then it cannot become "public premises" under Section 2(e) of the Act. We are satisfied with the impugned judgments which wholly rely on the above mentioned two decisions of the Allahabad High Court.
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Sri Sankari Prasad Singh Deo Vs. Union Of India And State Of Bihar(And Other Cases) | by Sir Reshbehary Ghose in his Law of Mortgage in India, vol. I Edn. 5. He says at P. 354, pointing out that co-mortgagors stand in a fiduciary relation:"I should add that an assignee of a mortgage is entitled, as a rule, to recover whatever may be due on the security. But if the stands in a fiduciary relation, he can only claim the price which he has actually paid together with incidental expenses."The right of the co-mortgagor who redeems the mortgage is spoken of as the right of reimbursement at p. 372 in the following passage:"strictly speaking, therefore, when one of several mortgagors redeems a mortgage, he is entitled to be treated as an assignee of the security which he may enforce in the usual way for the purpose of re-imbursing himself."14. The redeeming co-mortgagor being only a surety for the other co-mortgagors, his right is, strictly speaking, a right of reimbursement or contribution, and in law, when we have regard to the principles of equity and justice, there should be no difference between a case where he discharges an unsecured debt and a case where he discharges a secured debt. It is unnecessary for us to decide in this appeal whether S. 92, T. P, Act, was intended to strike a departure from this position when it states that the co-mortgagor shall have the same rights as the mortgagor whose mortgage he redeems, and whether it was intended to abrogate the rule of equity as between co-debtor and provide for the enforcement of the liability on the basis of the amount due under the mortgage; and this is because, as has been already stated, we are governed not by the statute but by general principles of equity and justice. If it is equitable that the redeeming co-mortgagor should be substituted in the mortgagees place, it is equally equitable that the other co-mortgagors should not be called upon to pay more than he paid in discharge of the encumbrance,15. In this connection reference may be made with advantage to the decision of Sir Asutosh Mookerjee and Teunon JJ. In Digambar Das v. Harendra Narayan Panday, 14 C. W. N, 617, where the question arose as regards the rate of interest and the period for which redeeming co-mortgagor would be entitled. There is an elaborate examination of the nature of the right of subrogation obtained by one of several joint co-mortgagors who redeems the mortgaged property, and in the course of the discussion the following observations occur :"In so far as the amount of money which he is entitled to recover from his co-mortgagors is concerned, he can claim contribution only with reference to the amount actually and properly paid to effect redemption to which sum he can add his legitimate expenses, ...The substitution, therefore, of the new creditor in place of the original one, does not place the former Precisely in the position of the latter for all purposes. .. .. . If therefore, one of several mortgagors satisfies the entire mortgage debt. though upon redemption he is subrogated to the right and remedies of the creditor, the Principle has to be so administered as to attain the ends of substantial justice regardless of form; in other words, the fictitious cession in favour of the person who effects the redemption, operates only to the extent to which it is necessary to apply it for his indemnity and protection"16. There is a definite expression of opinion by the Madras High Court on the point in the decision reported in Suryanarayana v. Sriramulu, 25 M. L. J. 16. In that case, a purchaser of a half share of the equity of redemption claimed to recover half of the amount of the mortgage on the security of the other share in the hands of the defendant, and it was held that as his purchase of the decree on the mortgage was prior to his purchase of the equity of redemption he was entitled to the full amount claimed by him. The learned Judges, distinguish the case from one where one of two mortgagors discharges an encumbrance binding on both and say that in such a case the mortgagor doing so could not recover from his co-mortgagors more than a proportionate share of the amount actually paid by him.17. After, this father lengthy discussion of the subject, we consider it unnecessary to notice and comment on the several decisions cited for the appellant. It may be said generally that they only lay down that in cases where the Transfer of property Act, as it stood originally or as amended in 1929, is not applicable, we are governed by the principles of equity, justice and good conscience, and that Ss. 92 and 95 embody such principles. None of the cases deals with the extent or degree of subrogation, and there is nothing in them which runs counter to the view that the doctrine must be applied along with other rules of equity, so that the person who discharges the mortgage is amply protected, and at the same time there is no injustice done to the other joint debtors. He who seeks equity must do equity, and we shall be violating this rule if we give effect to the appellants contention. The High Court, in our opinion, reached the correct conclusion.18. The parties are not agreed on the shares to which the plaintiffs are entitled and this is because after the date of the final decree some of the branches have become extinct by the deaths of their representatives. Whether under customary law in the Punjab, uncles exclude nephews or they take jointly, and whether succession is per stirpes or per capita, was the subject of disagreement at the Bar before us. This question must therefore be left over for determination by the trial Court, and, the case will have to go back to that Court for effecting partition and delivery of possession according to the shares to which the plaintiffs may be found entitled.1 | 0[ds]5. Points Nos. 1 and 3 have no force whatever. The registered deed of redemption does not contain any words of assignment. To say that Ganesh Lal shall be the owner of the entire amount due from the mortgaged property is something different from stating that the security has been assigned in his favour. On the other hand, the endorsement of receipt of payment on the back of the mortgage deed itself and the statement of the mortgagee that he has released the mortgaged property from his mortgage go to show that there was no assignment.6. The non-maintainability of the suit does not seem to have been in issue either before the trial Court or before the District Judge, and it appears to have been raised for the first time before the High Court. It was pointed out by the learned Judges, and quite rightly, that so long as no question of limitation was involved, there was no objection to a claim for redemption and one for possession and partition being joined together in the same suit.The original Ss. 74 and 75 conferred the right to redeem in express terms only on second or other subsequent mortgagees though the co-mortgagors right to subrogation on redemption was recognised even before the Act. As the Transfer of Property Act has not been extended to the State of East Punjab, it is unnecessary to decide whether S. 92 is retrospective in its operation, on which point there has been a conflict of opinion between the several High Courts. Section 95 of the Act which removed the confusion caused by the old section which conferring on the co-mortgagor what was called a charge, and thus seeming to negative the application of the doctrine of subrogation, is also inapplicable to the present case. We therefore steer clear of Ss. 74 and 75 of the old Act and Ss. 92 and 95 of the present Act, and we are free to decide the question on principles of justice, equity and good conscience.There is a definite expression of opinion by the Madras High Court on the point in the decision reported in Suryanarayana v. Sriramulu, 25 M. L. J. 16. In that case, a purchaser of a half share of the equity of redemption claimed to recover half of the amount of the mortgage on the security of the other share in the hands of the defendant, and it was held that as his purchase of the decree on the mortgage was prior to his purchase of the equity of redemption he was entitled to the full amount claimed by him. The learned Judges, distinguish the case from one where one of two mortgagors discharges an encumbrance binding on both and say that in such a case the mortgagor doing so could not recover from his co-mortgagors more than a proportionate share of the amount actually paid by him.17. After, this father lengthy discussion of the subject, we consider it unnecessary to notice and comment on the several decisions cited for the appellant. It may be said generally that they only lay down that in cases where the Transfer of property Act, as it stood originally or as amended in 1929, is not applicable, we are governed by the principles of equity, justice and good conscience, and that Ss. 92 and 95 embody such principles. None of the cases deals with the extent or degree of subrogation, and there is nothing in them which runs counter to the view that the doctrine must be applied along with other rules of equity, so that the person who discharges the mortgage is amply protected, and at the same time there is no injustice done to the other joint debtors. He who seeks equity must do equity, and we shall be violating this rule if we give effect to the appellants contention. The High Court, in our opinion, reached the correct conclusion.The parties are not agreed on the shares to which the plaintiffs are entitled and this is because after the date of the final decree some of the branches have become extinct by the deaths of their representatives. Whether under customary law in the Punjab, uncles exclude nephews or they take jointly, and whether succession is per stirpes or per capita, was the subject of disagreement at the Bar before us. This question must therefore be left over for determination by the trial Court, and, the case will have to go back to that Court for effecting partition and delivery of possession according to the shares to which the plaintiffs may be found entitled. | 0 | 3,890 | 827 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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by Sir Reshbehary Ghose in his Law of Mortgage in India, vol. I Edn. 5. He says at P. 354, pointing out that co-mortgagors stand in a fiduciary relation:"I should add that an assignee of a mortgage is entitled, as a rule, to recover whatever may be due on the security. But if the stands in a fiduciary relation, he can only claim the price which he has actually paid together with incidental expenses."The right of the co-mortgagor who redeems the mortgage is spoken of as the right of reimbursement at p. 372 in the following passage:"strictly speaking, therefore, when one of several mortgagors redeems a mortgage, he is entitled to be treated as an assignee of the security which he may enforce in the usual way for the purpose of re-imbursing himself."14. The redeeming co-mortgagor being only a surety for the other co-mortgagors, his right is, strictly speaking, a right of reimbursement or contribution, and in law, when we have regard to the principles of equity and justice, there should be no difference between a case where he discharges an unsecured debt and a case where he discharges a secured debt. It is unnecessary for us to decide in this appeal whether S. 92, T. P, Act, was intended to strike a departure from this position when it states that the co-mortgagor shall have the same rights as the mortgagor whose mortgage he redeems, and whether it was intended to abrogate the rule of equity as between co-debtor and provide for the enforcement of the liability on the basis of the amount due under the mortgage; and this is because, as has been already stated, we are governed not by the statute but by general principles of equity and justice. If it is equitable that the redeeming co-mortgagor should be substituted in the mortgagees place, it is equally equitable that the other co-mortgagors should not be called upon to pay more than he paid in discharge of the encumbrance,15. In this connection reference may be made with advantage to the decision of Sir Asutosh Mookerjee and Teunon JJ. In Digambar Das v. Harendra Narayan Panday, 14 C. W. N, 617, where the question arose as regards the rate of interest and the period for which redeeming co-mortgagor would be entitled. There is an elaborate examination of the nature of the right of subrogation obtained by one of several joint co-mortgagors who redeems the mortgaged property, and in the course of the discussion the following observations occur :"In so far as the amount of money which he is entitled to recover from his co-mortgagors is concerned, he can claim contribution only with reference to the amount actually and properly paid to effect redemption to which sum he can add his legitimate expenses, ...The substitution, therefore, of the new creditor in place of the original one, does not place the former Precisely in the position of the latter for all purposes. .. .. . If therefore, one of several mortgagors satisfies the entire mortgage debt. though upon redemption he is subrogated to the right and remedies of the creditor, the Principle has to be so administered as to attain the ends of substantial justice regardless of form; in other words, the fictitious cession in favour of the person who effects the redemption, operates only to the extent to which it is necessary to apply it for his indemnity and protection"16. There is a definite expression of opinion by the Madras High Court on the point in the decision reported in Suryanarayana v. Sriramulu, 25 M. L. J. 16. In that case, a purchaser of a half share of the equity of redemption claimed to recover half of the amount of the mortgage on the security of the other share in the hands of the defendant, and it was held that as his purchase of the decree on the mortgage was prior to his purchase of the equity of redemption he was entitled to the full amount claimed by him. The learned Judges, distinguish the case from one where one of two mortgagors discharges an encumbrance binding on both and say that in such a case the mortgagor doing so could not recover from his co-mortgagors more than a proportionate share of the amount actually paid by him.17. After, this father lengthy discussion of the subject, we consider it unnecessary to notice and comment on the several decisions cited for the appellant. It may be said generally that they only lay down that in cases where the Transfer of property Act, as it stood originally or as amended in 1929, is not applicable, we are governed by the principles of equity, justice and good conscience, and that Ss. 92 and 95 embody such principles. None of the cases deals with the extent or degree of subrogation, and there is nothing in them which runs counter to the view that the doctrine must be applied along with other rules of equity, so that the person who discharges the mortgage is amply protected, and at the same time there is no injustice done to the other joint debtors. He who seeks equity must do equity, and we shall be violating this rule if we give effect to the appellants contention. The High Court, in our opinion, reached the correct conclusion.18. The parties are not agreed on the shares to which the plaintiffs are entitled and this is because after the date of the final decree some of the branches have become extinct by the deaths of their representatives. Whether under customary law in the Punjab, uncles exclude nephews or they take jointly, and whether succession is per stirpes or per capita, was the subject of disagreement at the Bar before us. This question must therefore be left over for determination by the trial Court, and, the case will have to go back to that Court for effecting partition and delivery of possession according to the shares to which the plaintiffs may be found entitled.1
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5. Points Nos. 1 and 3 have no force whatever. The registered deed of redemption does not contain any words of assignment. To say that Ganesh Lal shall be the owner of the entire amount due from the mortgaged property is something different from stating that the security has been assigned in his favour. On the other hand, the endorsement of receipt of payment on the back of the mortgage deed itself and the statement of the mortgagee that he has released the mortgaged property from his mortgage go to show that there was no assignment.6. The non-maintainability of the suit does not seem to have been in issue either before the trial Court or before the District Judge, and it appears to have been raised for the first time before the High Court. It was pointed out by the learned Judges, and quite rightly, that so long as no question of limitation was involved, there was no objection to a claim for redemption and one for possession and partition being joined together in the same suit.The original Ss. 74 and 75 conferred the right to redeem in express terms only on second or other subsequent mortgagees though the co-mortgagors right to subrogation on redemption was recognised even before the Act. As the Transfer of Property Act has not been extended to the State of East Punjab, it is unnecessary to decide whether S. 92 is retrospective in its operation, on which point there has been a conflict of opinion between the several High Courts. Section 95 of the Act which removed the confusion caused by the old section which conferring on the co-mortgagor what was called a charge, and thus seeming to negative the application of the doctrine of subrogation, is also inapplicable to the present case. We therefore steer clear of Ss. 74 and 75 of the old Act and Ss. 92 and 95 of the present Act, and we are free to decide the question on principles of justice, equity and good conscience.There is a definite expression of opinion by the Madras High Court on the point in the decision reported in Suryanarayana v. Sriramulu, 25 M. L. J. 16. In that case, a purchaser of a half share of the equity of redemption claimed to recover half of the amount of the mortgage on the security of the other share in the hands of the defendant, and it was held that as his purchase of the decree on the mortgage was prior to his purchase of the equity of redemption he was entitled to the full amount claimed by him. The learned Judges, distinguish the case from one where one of two mortgagors discharges an encumbrance binding on both and say that in such a case the mortgagor doing so could not recover from his co-mortgagors more than a proportionate share of the amount actually paid by him.17. After, this father lengthy discussion of the subject, we consider it unnecessary to notice and comment on the several decisions cited for the appellant. It may be said generally that they only lay down that in cases where the Transfer of property Act, as it stood originally or as amended in 1929, is not applicable, we are governed by the principles of equity, justice and good conscience, and that Ss. 92 and 95 embody such principles. None of the cases deals with the extent or degree of subrogation, and there is nothing in them which runs counter to the view that the doctrine must be applied along with other rules of equity, so that the person who discharges the mortgage is amply protected, and at the same time there is no injustice done to the other joint debtors. He who seeks equity must do equity, and we shall be violating this rule if we give effect to the appellants contention. The High Court, in our opinion, reached the correct conclusion.The parties are not agreed on the shares to which the plaintiffs are entitled and this is because after the date of the final decree some of the branches have become extinct by the deaths of their representatives. Whether under customary law in the Punjab, uncles exclude nephews or they take jointly, and whether succession is per stirpes or per capita, was the subject of disagreement at the Bar before us. This question must therefore be left over for determination by the trial Court, and, the case will have to go back to that Court for effecting partition and delivery of possession according to the shares to which the plaintiffs may be found entitled.
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Deity Pattabhiramaswamy Vs. S. Hanymayya & Others | the respondents, on the other hand, seeks to support the judgment of the High Court on the ground that the learned Judge based his judgment on the interpretation of the recitals in the document, which have been wrongly construed by the learned Subordinate Judge, and therefore the question raised in the second appeal was not one of fact but of law.11. The learned Judge of the High Court set aside the findings of the learned District Judge on the following grounds : (1) the property remained with the Behara family even as late as 1906; (2) it is unsafe to rely upon the contents of Exhibits P-13 to P-17, the cowles executed by defendants 6 to 23 in respect of the suit and, whereunder, in clear terms, the suit land was described as Bhajantri Inam of Sri Pattabhiramaswami Garu; (3) the mere fact that the property is called Bhajantri Inam of Sri Pattabhiramaswami Garu does not prove that the property was the property of the Swami Garu; (5) the evidence of P. W. 2 is not of much evidential value. The learned Judge concluded his judgment with the following remarks :"This case not having been proved by any direct or acceptable evidence and the documents relied upon by the Courts below in order to spin out a title in the deity and the so-called grant in favour of the Bhajantries being wholly unreliable, I must hold, even following the principle laid down in Wali Muhammad v. Muhammad Baksh ILR 11 Lah 199 : 1930 AIR(PC) 91) that the legal effect of the proved fact, viz., that the defendants 6 to 23 are in absolute possession of the property in their own right and not in the right of the temple, or on its behalf, should be considered essentially to be a question of law and in this view, the decree of the Courts below is unsustainable and the same has to be set aside." *12. It will be seen from the aforesaid narration of facts that the High Court interfered with the finding of fact given by the District Judge on the question of title by taking a different view of the evidence accepted by the learned District Judge. While the Subordinate Judge and on appeal the District Judge held, on a consideration of the relevant evidence, that the Behara family ceased to have any interest in the suit property, at any rate by the year 1886, the learned Judge of the High Court on a consideration of the same evidence came to the conclusion that the suit property continued to be the property of the Behara family till the year 1906, Whereas the genuineness of Exhibits P-13 to P-17 was not questioned in the Courts below and indeed both the Courts proceeded on the basis of the said documents, the learned Judge of the High Court, for the first time, in the second appeal, questioned the genuineness of the documents and found that their execution was not conclusively established. When the recitals in the documents Exhibits P-13 to P-17 executed by defendants 6 to 23 contain a clear and unambiguous admission that the property was Bhajantri Inam of Sri Pattabhiramaswami Garu, the learned Judge, ignored those recitals with the observation that the description would not prove anything in favour of the plaintiff. The evidence of P. W. 2 was also brushed aside with the observation that it was not of much value. It is therefore clear that the learned Judge in effect and in substance considered the entire evidence - oral and documentary-and came to the conclusion different from that arrived at by the learned District Judge.13. The finding on the title was arrived at by the learned District Judge not on the basis of any document of title but on a consideration of relevant documentary and oral evidence adduced by the parties. The learned Judge therefore, in our opinion, clearly exceeded his jurisdiction in setting aside the said finding. The provisions of Section 100 are clear and unambiguous. As early as 1891, the Judicial Committee in Durga Chowdhrani v. Jawahir Sigh, 17 Ind. App 122 (PC), stated thus :"There is no. jurisdiction to entertain a second appeal on the ground of erroneous finding of act, however gross the error may seem to be".The principle laid down in this decision has been followed in innumerable cases by the Privy Council as well as by different High Courts in this country. Again the Judicial Committee in Midnapur Zamindari Co. Ltd. v. Uma Charan, 29 Cal WN 131 : 1923 AIR(PC) 187), further elucidated the principle by pointing out :"If the question to be decided is one of fact it does not involve an issue of law merely because documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents, have to be construed." *14. Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact (See 11 ILR(Lah) 199 : 1930 AIR(PC) 91). But, notwithstanding such clear & authoritative pronouncements on the scope of the provisions of Section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes & exercises a jurisdiction which it does not possess, a gambling element in the litigation & confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under S. 100, Civil Procedure Code. We have, therefore, no. alternative but to set aside the decree of the High Court on the simple ground that the learned Judge of the High Court had no. jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence. | 1[ds]13. The finding on the title was arrived at by the learned District Judge not on the basis of any document of title but on a consideration of relevant documentary and oral evidence adduced by the parties. The learned Judge therefore, in our opinion, clearly exceeded his jurisdiction in setting aside the said finding.Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact (See 11 ILR(Lah) 199 : 1930 AIR(PC) 91). But, notwithstanding such clear & authoritative pronouncements on the scope of the provisions of Section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes & exercises a jurisdiction which it does not possess, a gambling element in the litigation & confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under S. 100, Civil Procedure Code. We have, therefore, no. alternative but to set aside the decree of the High Court on the simple ground that the learned Judge of the High Court had no. jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence. | 1 | 2,115 | 272 | ### 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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the respondents, on the other hand, seeks to support the judgment of the High Court on the ground that the learned Judge based his judgment on the interpretation of the recitals in the document, which have been wrongly construed by the learned Subordinate Judge, and therefore the question raised in the second appeal was not one of fact but of law.11. The learned Judge of the High Court set aside the findings of the learned District Judge on the following grounds : (1) the property remained with the Behara family even as late as 1906; (2) it is unsafe to rely upon the contents of Exhibits P-13 to P-17, the cowles executed by defendants 6 to 23 in respect of the suit and, whereunder, in clear terms, the suit land was described as Bhajantri Inam of Sri Pattabhiramaswami Garu; (3) the mere fact that the property is called Bhajantri Inam of Sri Pattabhiramaswami Garu does not prove that the property was the property of the Swami Garu; (5) the evidence of P. W. 2 is not of much evidential value. The learned Judge concluded his judgment with the following remarks :"This case not having been proved by any direct or acceptable evidence and the documents relied upon by the Courts below in order to spin out a title in the deity and the so-called grant in favour of the Bhajantries being wholly unreliable, I must hold, even following the principle laid down in Wali Muhammad v. Muhammad Baksh ILR 11 Lah 199 : 1930 AIR(PC) 91) that the legal effect of the proved fact, viz., that the defendants 6 to 23 are in absolute possession of the property in their own right and not in the right of the temple, or on its behalf, should be considered essentially to be a question of law and in this view, the decree of the Courts below is unsustainable and the same has to be set aside." *12. It will be seen from the aforesaid narration of facts that the High Court interfered with the finding of fact given by the District Judge on the question of title by taking a different view of the evidence accepted by the learned District Judge. While the Subordinate Judge and on appeal the District Judge held, on a consideration of the relevant evidence, that the Behara family ceased to have any interest in the suit property, at any rate by the year 1886, the learned Judge of the High Court on a consideration of the same evidence came to the conclusion that the suit property continued to be the property of the Behara family till the year 1906, Whereas the genuineness of Exhibits P-13 to P-17 was not questioned in the Courts below and indeed both the Courts proceeded on the basis of the said documents, the learned Judge of the High Court, for the first time, in the second appeal, questioned the genuineness of the documents and found that their execution was not conclusively established. When the recitals in the documents Exhibits P-13 to P-17 executed by defendants 6 to 23 contain a clear and unambiguous admission that the property was Bhajantri Inam of Sri Pattabhiramaswami Garu, the learned Judge, ignored those recitals with the observation that the description would not prove anything in favour of the plaintiff. The evidence of P. W. 2 was also brushed aside with the observation that it was not of much value. It is therefore clear that the learned Judge in effect and in substance considered the entire evidence - oral and documentary-and came to the conclusion different from that arrived at by the learned District Judge.13. The finding on the title was arrived at by the learned District Judge not on the basis of any document of title but on a consideration of relevant documentary and oral evidence adduced by the parties. The learned Judge therefore, in our opinion, clearly exceeded his jurisdiction in setting aside the said finding. The provisions of Section 100 are clear and unambiguous. As early as 1891, the Judicial Committee in Durga Chowdhrani v. Jawahir Sigh, 17 Ind. App 122 (PC), stated thus :"There is no. jurisdiction to entertain a second appeal on the ground of erroneous finding of act, however gross the error may seem to be".The principle laid down in this decision has been followed in innumerable cases by the Privy Council as well as by different High Courts in this country. Again the Judicial Committee in Midnapur Zamindari Co. Ltd. v. Uma Charan, 29 Cal WN 131 : 1923 AIR(PC) 187), further elucidated the principle by pointing out :"If the question to be decided is one of fact it does not involve an issue of law merely because documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents, have to be construed." *14. Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact (See 11 ILR(Lah) 199 : 1930 AIR(PC) 91). But, notwithstanding such clear & authoritative pronouncements on the scope of the provisions of Section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes & exercises a jurisdiction which it does not possess, a gambling element in the litigation & confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under S. 100, Civil Procedure Code. We have, therefore, no. alternative but to set aside the decree of the High Court on the simple ground that the learned Judge of the High Court had no. jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence.
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1
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13. The finding on the title was arrived at by the learned District Judge not on the basis of any document of title but on a consideration of relevant documentary and oral evidence adduced by the parties. The learned Judge therefore, in our opinion, clearly exceeded his jurisdiction in setting aside the said finding.Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact (See 11 ILR(Lah) 199 : 1930 AIR(PC) 91). But, notwithstanding such clear & authoritative pronouncements on the scope of the provisions of Section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes & exercises a jurisdiction which it does not possess, a gambling element in the litigation & confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under S. 100, Civil Procedure Code. We have, therefore, no. alternative but to set aside the decree of the High Court on the simple ground that the learned Judge of the High Court had no. jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence.
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First Additional Income Tax Officer, Karaikudi, and Another Vs. T. M. K. Abdul Kassim | HIDAYATULLAH J.1. One T. M. Khadir Mohideen, who owned rice mills and other wholesale business, died on August 11, 1948, after the end of the previous year for the assessment year, 1948-49. A notice under section 22(2) of the Income-tax Act was served on his two sons, and the assessment was made on a total assessable income of Rs. 63, 982. The tax due was found to be Rs. 23, 648-9-0 which, after deducting the tax paid under sections 18A and 23B, came to Rs. 19, 903-3-0. Notices demanding the tax were served on T. M. Abdul Kassim, the respondent, and on his brother, Syed Mohammad. The tax was not paid on the due date, and a penalty of Rs. 1, 000 was imposed. The Income-tax Officer then issued a certificate under section 46(2) of the Act to the Collector of Ramanathapuram, who forwarded it to the Special Deputy Tahsildar for Income-tax Collection to take action under the Madras Revenue Recovery Act. A notice was then issued by the Deputy Tahsildar on July 17, 1956 requesting payment of Rs. 20, 930-3-0 within one week. On August 7, 1956, T. M. K. Abdul Kassim (respondent) filed a petition under article 226 of the Constitution for a writ of prohibition against the Deputy Tahsildar, joining the First Additional Income-tax Officer, Karaikudi, as the other respondent The divisional bench who heard the petition, following their decision earlier given in Alfred v. Additional Income-tax Officer, held that the petitioner could not be treated as an assessee, and that, therefore, sub-section (2) of section 46 was not applicable to him. The divisional bench, therefore, quashed the certificate by a writ of certiorari, and set aside the notice dated July 17, 1956, by the Tahsildar. The case was certified under article 133(1)(c) as fit for appeal, and the First Additional Income-tax Officer, Karaikudi, and the Special Deputy Tahsildar have filed the present appeal. The respondent was absent at the hearingThe High Court, in the judgment under appeal, observes that the validity of the assessment or of the order imposing the penalty was not challenged at the hearing in the High Court. The respondent only questioned the certificate issued under section 46(2) of the Act and the recourse to the provisions of the Revenue Recovery Act. Section 46(2) of the Income-tax Act reads" The Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue. "2. The High Court posed the question whether the sum demanded of the respondent on the basis of the certificate issued under section 46(2) could be said to be " arrears due from an assessee ". In Alfreds case, the High Court had held that in assessments under section 24B(2) or section 24B(3), there was a limited fiction of treating a legal representative as an assessee for purposes of assessment, and the fiction came to an end when the assessment proceedings were over and the tax ascertained. Relying upon the distinction between an " assessee " and " other person " in section 29 of the Act, the High Court had held that a legal representative of an assessee could not be viewed as himself an assessee within section 46(1). In view of this decision, the High Court observed in this case" The logical extension of what we laid down in Alfred v. Additional Income-tax Officer compels us to answer the question in the negative. "3. In Alfreds case, the department had appealed to this court and the appeal was pending in this court when the present case was decided4. Subsequently, this court reversed the decision of the Madras High Court in Alfreds case : vide Additional Income-tax Officer v. Alfred. It was held that the fiction in sub-section (2) of section 24B does not come to an end when the assessment proceedings are over, but logically extends to the collection of the tax from the legal representative of the assessee. It was pointed out by this court that the distinction between an " assessee " and " other person " in section 29 does not bear upon this matter, because the legal representative is in himself the assessee and as an assessee in default, liable to penalties under section 46(1). It, therefore, follows that if the legal representative, who was proceeded against under section 24B(2), must be deemed to be an assessee for the purpose of assessment, levy and collection of tax, the provisions of sections 45, 46(1) and also 46(2) must apply to him. In our opinion, both the certificate issued under section 46(2) and the notice of July 17, 1956, were valid, and the High Court was in error in quashing the former and setting aside the latter | 1[ds]3. In Alfreds case, the department had appealed to this court and the appeal was pending in this court when the present case wasSubsequently, this court reversed the decision of the Madras High Court in Alfreds case : vide AdditionalOfficer v. Alfred. It was held that the fiction in(2) of section 24B does not come to an end when the assessment proceedings are over, but logically extends to the collection of the tax from the legal representative of the assessee. It was pointed out by this court that the distinction between an " assessee " and " other person " in section 29 does not bear upon this matter, because the legal representative is in himself the assessee and as an assessee in default, liable to penalties under section 46(1). It, therefore, follows that if the legal representative, who was proceeded against under section 24B(2), must be deemed to be an assessee for the purpose of assessment, levy and collection of tax, the provisions of sections 45, 46(1) and also 46(2) must apply to him. In our opinion, both the certificate issued under section 46(2) and the notice of July 17, 1956, were valid, and the High Court was in error in quashing the former and setting aside the latter | 1 | 965 | 253 | ### 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:
HIDAYATULLAH J.1. One T. M. Khadir Mohideen, who owned rice mills and other wholesale business, died on August 11, 1948, after the end of the previous year for the assessment year, 1948-49. A notice under section 22(2) of the Income-tax Act was served on his two sons, and the assessment was made on a total assessable income of Rs. 63, 982. The tax due was found to be Rs. 23, 648-9-0 which, after deducting the tax paid under sections 18A and 23B, came to Rs. 19, 903-3-0. Notices demanding the tax were served on T. M. Abdul Kassim, the respondent, and on his brother, Syed Mohammad. The tax was not paid on the due date, and a penalty of Rs. 1, 000 was imposed. The Income-tax Officer then issued a certificate under section 46(2) of the Act to the Collector of Ramanathapuram, who forwarded it to the Special Deputy Tahsildar for Income-tax Collection to take action under the Madras Revenue Recovery Act. A notice was then issued by the Deputy Tahsildar on July 17, 1956 requesting payment of Rs. 20, 930-3-0 within one week. On August 7, 1956, T. M. K. Abdul Kassim (respondent) filed a petition under article 226 of the Constitution for a writ of prohibition against the Deputy Tahsildar, joining the First Additional Income-tax Officer, Karaikudi, as the other respondent The divisional bench who heard the petition, following their decision earlier given in Alfred v. Additional Income-tax Officer, held that the petitioner could not be treated as an assessee, and that, therefore, sub-section (2) of section 46 was not applicable to him. The divisional bench, therefore, quashed the certificate by a writ of certiorari, and set aside the notice dated July 17, 1956, by the Tahsildar. The case was certified under article 133(1)(c) as fit for appeal, and the First Additional Income-tax Officer, Karaikudi, and the Special Deputy Tahsildar have filed the present appeal. The respondent was absent at the hearingThe High Court, in the judgment under appeal, observes that the validity of the assessment or of the order imposing the penalty was not challenged at the hearing in the High Court. The respondent only questioned the certificate issued under section 46(2) of the Act and the recourse to the provisions of the Revenue Recovery Act. Section 46(2) of the Income-tax Act reads" The Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue. "2. The High Court posed the question whether the sum demanded of the respondent on the basis of the certificate issued under section 46(2) could be said to be " arrears due from an assessee ". In Alfreds case, the High Court had held that in assessments under section 24B(2) or section 24B(3), there was a limited fiction of treating a legal representative as an assessee for purposes of assessment, and the fiction came to an end when the assessment proceedings were over and the tax ascertained. Relying upon the distinction between an " assessee " and " other person " in section 29 of the Act, the High Court had held that a legal representative of an assessee could not be viewed as himself an assessee within section 46(1). In view of this decision, the High Court observed in this case" The logical extension of what we laid down in Alfred v. Additional Income-tax Officer compels us to answer the question in the negative. "3. In Alfreds case, the department had appealed to this court and the appeal was pending in this court when the present case was decided4. Subsequently, this court reversed the decision of the Madras High Court in Alfreds case : vide Additional Income-tax Officer v. Alfred. It was held that the fiction in sub-section (2) of section 24B does not come to an end when the assessment proceedings are over, but logically extends to the collection of the tax from the legal representative of the assessee. It was pointed out by this court that the distinction between an " assessee " and " other person " in section 29 does not bear upon this matter, because the legal representative is in himself the assessee and as an assessee in default, liable to penalties under section 46(1). It, therefore, follows that if the legal representative, who was proceeded against under section 24B(2), must be deemed to be an assessee for the purpose of assessment, levy and collection of tax, the provisions of sections 45, 46(1) and also 46(2) must apply to him. In our opinion, both the certificate issued under section 46(2) and the notice of July 17, 1956, were valid, and the High Court was in error in quashing the former and setting aside the latter
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1
### Explanation:
3. In Alfreds case, the department had appealed to this court and the appeal was pending in this court when the present case wasSubsequently, this court reversed the decision of the Madras High Court in Alfreds case : vide AdditionalOfficer v. Alfred. It was held that the fiction in(2) of section 24B does not come to an end when the assessment proceedings are over, but logically extends to the collection of the tax from the legal representative of the assessee. It was pointed out by this court that the distinction between an " assessee " and " other person " in section 29 does not bear upon this matter, because the legal representative is in himself the assessee and as an assessee in default, liable to penalties under section 46(1). It, therefore, follows that if the legal representative, who was proceeded against under section 24B(2), must be deemed to be an assessee for the purpose of assessment, levy and collection of tax, the provisions of sections 45, 46(1) and also 46(2) must apply to him. In our opinion, both the certificate issued under section 46(2) and the notice of July 17, 1956, were valid, and the High Court was in error in quashing the former and setting aside the latter
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Commissioner Of Income-Tax, West Bengal,Calcutta Vs. Juggilal Kamalapat | firm Juggilal Kamalapat, consisting of two partners, the Kamala Town Trust, represented by the three trustees, and l Jhabbarmal Saraf. Their shares in the profits and losses were also specified in the deed of partnership. There was the further finding by the Income-tax Officer that the kamala Town Trust. which entered into the partnership, actually introduced a sum of Rs.50,000 as its capital in this partnership firm. On these facts by themselves, it should have been held that a valid partnership had come into existence. 9. So far as the deed of relinquishment is concerned, learned counsel appearing on behalf of the Commissioner has not been able to show to us any provision of law, or any decision of a Court laying down that a deed of relinquishment executed by partners of a firm in respect of their share and interest in a firm required registration, in case the firm owned immovable properties. In this connection, learned counsel for the respondent firm brought to our notice a recent decision of this Court in A. Narayanappa v. B. Krishnappa, Civil Appeal No. 299 of 1961, dated 21-1-1966 (reported AIR 1966 SC 1300), where the question that came up for consideration was whether the interest of a partner in partnership assets comprising of movable as weld as immovable property should be treated as movab1e or immovable property for the purposes of S. 17 (1) of the Registration Act, 1908. The Court upheld the view of the full Bench of the Andhra Pradesh High Court in Addanki Narayanappa v. Bhaskara Krishnappa, ILR (1959) Andh Pra 387: AIR 1959 Andh Pra 380 (FB)). Mudholkar, J., speaking for this Court held :"It seems to us that looking to the scheme of the Indian Act, no other view can reasonably he taken. The whole concept of partnership is to embark upon a joint venture and for that purpose to bring in as capital money or even property including immovable property. Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in. It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. The person who brought it in would therefore, not be able to claim or exercise any exclusive right over any property which he has brought in, much less over any other partnership property. He would not be able to exercise his right even to the extent of his share in the business of the partnership. As already stated, his right during the subsistence of the partnership is to get his share of profits from time to time as may be agreed upon among the partners and after the dissolution of the partnership or with his retirement from partnership of the value of his share in the net partnership assets as on the date of dissolution or retirement after a deduction of liabilities and prior charges." On this basis, the ultimate decision was that a deed, evidencing the transfer of an interest of a partner in partnership assets, does not require registration even though the partnership assets are comprised of movable as well as immovable property. 10. A Full Bench of the Lahore High Court in Ajudhia Pershad Ram Pershad v. Sham Sundar, ILR (1947) as Lah 417: (AIR 1947 Lah 13 (FB) ), held that the interest in a partnership of a partner is to be regarded as movable property when it is sought to be dealt with under O. 21 R. 49, Civil Procedure Code, notwithstanding that at the time when it is charged or sold, the partnership assets include immovable property. 11. The Deed of Relinquishment, in this case, was in respect of the individual interest of the three Singhania Brothers in the assets of the partnership firm in favour of the Kamala Town Trust, and consequently, did not require registration, even though the assets of the partnership firm included immovable property, and was valid without registration. As a result of this deed, all the assets of the partnership vested in the new partners of the firm. 12. In the alternative, we think that, even if it had been accepted that this deed of relinquishment required registration, that would not lead to the conclusion that the partnership seeking registration was not valid and had not come into existence in law. The deed of relinquishment could, at best. be held to he invalid insofar as it affected the immovable properties included in the assets of the firm; but to the extent that it purported to transfer movable assets of the firm, the document would remain valid. The deed could clearly be divided into two separate parts, one relating to immovable properties, and the other to movable assets; and the part of the deed dealing with movable assets could not be held invalid for want of registration. A deed of relinquishment is in the nature of a deed of gift, where the various properties dealt with are always separable, and the invalidity of the deed of gift in respect of one item cannot affect its validity in respect of another. This view was expressed by the Madras High Court in Perumal Ammal v. Perumal Naicker, ILR 44 Mad 196 : (AIR 1921 Mad 137 ). A deed of relinquishment, or a deed of gift, differs from a deed of partition in which it is not possible to hold that the partition is valid in respect of some properties and not in respect of others, because rights of persons being partitioned are adjusted with reference to the properties subject to partition as a whole. In the case before us, therefore, the deed of relinquishment was valid at least in respect of movable properties, and the partnership seeking registration, thus, became owner of all the movable assets of the partnership in addition to having contributed a sum of Rs. 50,000 as capital investment in it. | 0[ds]In our opinion the question sought to be raised on behalf of the Commissioner should not have been allowed to be raised by the High Court even at the earliest stage, and that it was the error committed by the High Court in entertaining this question that has resulted in unnecessary proceedings and consequent delay. When the case first came up before the High Court, the question that was referred in the statement of the case was, as we have mentioned above, whether the partnership legally came into existence and, as such, should be registered. The existence of a firm could be challenged on two alternative grounds. One was that, in fact, on the evidence, it could not be held that such a firm had at all been constituted and had come into existence. The other was that even though it purported to come into existence as a fact, it could not claim to be a valid partnership because of some legal defect, or, in other words, whether its existence was valid in law. On the face of it the question that was referred to the High Court for opinion was the second question and not the first one. The first question, in fact, could not have been referred to the High Court at all for opinion, because that would be a pure question of fact on which the decision of the Tribunal would he final and no reference to the High Court would lie under S. 66. A reference to the High Court lies only on a question of law. The High Court, when requested to answer the question referred in the first statement of the case, should, therefore, have confined itself to the legal aspect of the existence of the partnership and should not have entered at all into the question whether the partnership had come into existence in fact or not. The Tribunal which had passed the appellate order in these proceedings consisted of two Members, and the first statement of the case was submitted by those very Members. It is clear that they themselves, when making the reference to the High Court, were of the view that they had not anywhere recorded a finding that the firm had not come into existence in fact, because, if they had come to such a finding, no question of law could possibly have been referred by them to the High Court. The existence in law of a firm, which does not exist in fact, could not possibly be found by the High Court on the question referred. Consequently, we must reject the submission made on behalf of the Commissioner that, in this case, the High Court should have gone into the question of existence of the respondent firm as a question of fact; and in this appeal also, we must proceed on the basis that the respondent firm did in fact come into existence, and that all that the High Court was called upon to decide was whether it also came into existence in law8. It appears to us that, in this case, the submissions that were made on behalf of the Commissioner before the High Court and which have been made before us have ignored the effect of the important relevant documents and have unnecessarily placed too much reliance on the Deed of Relinquishment. The Tribunal found that a Kamala Town Trust had been constituted of which the three Singhania Brothers were the Trustees. The Tribunal also found that a deed of partnership was executed so as to constitute the firm Juggilal Kamalapat, consisting of two partners, the Kamala Town Trust, represented by the three trustees, and l Jhabbarmal Saraf. Their shares in the profits and losses were also specified in the deed of partnership. There was the further finding by the Income-tax Officer that the kamala Town Trust. which entered into the partnership, actually introduced a sum of Rs.50,000 as its capital in this partnership firm. On these facts by themselves, it should have been held that a valid partnership had come into existence11. The Deed of Relinquishment, in this case, was in respect of the individual interest of the three Singhania Brothers in the assets of the partnership firm in favour of the Kamala Town Trust, and consequently, did not require registration, even though the assets of the partnership firm included immovable property, and was valid without registration. As a result of this deed, all the assets of the partnership vested in the new partners of the firm12. In the alternative, we think that, even if it had been accepted that this deed of relinquishment required registration, that would not lead to the conclusion that the partnership seeking registration was not valid and had not come into existence in law. The deed of relinquishment could, at best. be held to he invalid insofar as it affected the immovable properties included in the assets of the firm; but to the extent that it purported to transfer movable assets of the firm, the document would remain valid. The deed could clearly be divided into two separate parts, one relating to immovable properties, and the other to movable assets; and the part of the deed dealing with movable assets could not be held invalid for want of registration. A deed of relinquishment is in the nature of a deed of gift, where the various properties dealt with are always separable, and the invalidity of the deed of gift in respect of one item cannot affect its validity in respect of another. This view was expressed by the Madras High Court in Perumal Ammal v. Perumal Naicker, ILR 44 Mad 196 : (AIR 1921 Mad 137 ). A deed of relinquishment, or a deed of gift, differs from a deed of partition in which it is not possible to hold that the partition is valid in respect of some properties and not in respect of others, because rights of persons being partitioned are adjusted with reference to the properties subject to partition as a whole. In the case before us, therefore, the deed of relinquishment was valid at least in respect of movable properties, and the partnership seeking registration, thus, became owner of all the movable assets of the partnership in addition to having contributed a sum of Rs. 50,000 as capital investment in it. | 0 | 3,199 | 1,161 | ### 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:
firm Juggilal Kamalapat, consisting of two partners, the Kamala Town Trust, represented by the three trustees, and l Jhabbarmal Saraf. Their shares in the profits and losses were also specified in the deed of partnership. There was the further finding by the Income-tax Officer that the kamala Town Trust. which entered into the partnership, actually introduced a sum of Rs.50,000 as its capital in this partnership firm. On these facts by themselves, it should have been held that a valid partnership had come into existence. 9. So far as the deed of relinquishment is concerned, learned counsel appearing on behalf of the Commissioner has not been able to show to us any provision of law, or any decision of a Court laying down that a deed of relinquishment executed by partners of a firm in respect of their share and interest in a firm required registration, in case the firm owned immovable properties. In this connection, learned counsel for the respondent firm brought to our notice a recent decision of this Court in A. Narayanappa v. B. Krishnappa, Civil Appeal No. 299 of 1961, dated 21-1-1966 (reported AIR 1966 SC 1300), where the question that came up for consideration was whether the interest of a partner in partnership assets comprising of movable as weld as immovable property should be treated as movab1e or immovable property for the purposes of S. 17 (1) of the Registration Act, 1908. The Court upheld the view of the full Bench of the Andhra Pradesh High Court in Addanki Narayanappa v. Bhaskara Krishnappa, ILR (1959) Andh Pra 387: AIR 1959 Andh Pra 380 (FB)). Mudholkar, J., speaking for this Court held :"It seems to us that looking to the scheme of the Indian Act, no other view can reasonably he taken. The whole concept of partnership is to embark upon a joint venture and for that purpose to bring in as capital money or even property including immovable property. Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in. It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. The person who brought it in would therefore, not be able to claim or exercise any exclusive right over any property which he has brought in, much less over any other partnership property. He would not be able to exercise his right even to the extent of his share in the business of the partnership. As already stated, his right during the subsistence of the partnership is to get his share of profits from time to time as may be agreed upon among the partners and after the dissolution of the partnership or with his retirement from partnership of the value of his share in the net partnership assets as on the date of dissolution or retirement after a deduction of liabilities and prior charges." On this basis, the ultimate decision was that a deed, evidencing the transfer of an interest of a partner in partnership assets, does not require registration even though the partnership assets are comprised of movable as well as immovable property. 10. A Full Bench of the Lahore High Court in Ajudhia Pershad Ram Pershad v. Sham Sundar, ILR (1947) as Lah 417: (AIR 1947 Lah 13 (FB) ), held that the interest in a partnership of a partner is to be regarded as movable property when it is sought to be dealt with under O. 21 R. 49, Civil Procedure Code, notwithstanding that at the time when it is charged or sold, the partnership assets include immovable property. 11. The Deed of Relinquishment, in this case, was in respect of the individual interest of the three Singhania Brothers in the assets of the partnership firm in favour of the Kamala Town Trust, and consequently, did not require registration, even though the assets of the partnership firm included immovable property, and was valid without registration. As a result of this deed, all the assets of the partnership vested in the new partners of the firm. 12. In the alternative, we think that, even if it had been accepted that this deed of relinquishment required registration, that would not lead to the conclusion that the partnership seeking registration was not valid and had not come into existence in law. The deed of relinquishment could, at best. be held to he invalid insofar as it affected the immovable properties included in the assets of the firm; but to the extent that it purported to transfer movable assets of the firm, the document would remain valid. The deed could clearly be divided into two separate parts, one relating to immovable properties, and the other to movable assets; and the part of the deed dealing with movable assets could not be held invalid for want of registration. A deed of relinquishment is in the nature of a deed of gift, where the various properties dealt with are always separable, and the invalidity of the deed of gift in respect of one item cannot affect its validity in respect of another. This view was expressed by the Madras High Court in Perumal Ammal v. Perumal Naicker, ILR 44 Mad 196 : (AIR 1921 Mad 137 ). A deed of relinquishment, or a deed of gift, differs from a deed of partition in which it is not possible to hold that the partition is valid in respect of some properties and not in respect of others, because rights of persons being partitioned are adjusted with reference to the properties subject to partition as a whole. In the case before us, therefore, the deed of relinquishment was valid at least in respect of movable properties, and the partnership seeking registration, thus, became owner of all the movable assets of the partnership in addition to having contributed a sum of Rs. 50,000 as capital investment in it.
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case first came up before the High Court, the question that was referred in the statement of the case was, as we have mentioned above, whether the partnership legally came into existence and, as such, should be registered. The existence of a firm could be challenged on two alternative grounds. One was that, in fact, on the evidence, it could not be held that such a firm had at all been constituted and had come into existence. The other was that even though it purported to come into existence as a fact, it could not claim to be a valid partnership because of some legal defect, or, in other words, whether its existence was valid in law. On the face of it the question that was referred to the High Court for opinion was the second question and not the first one. The first question, in fact, could not have been referred to the High Court at all for opinion, because that would be a pure question of fact on which the decision of the Tribunal would he final and no reference to the High Court would lie under S. 66. A reference to the High Court lies only on a question of law. The High Court, when requested to answer the question referred in the first statement of the case, should, therefore, have confined itself to the legal aspect of the existence of the partnership and should not have entered at all into the question whether the partnership had come into existence in fact or not. The Tribunal which had passed the appellate order in these proceedings consisted of two Members, and the first statement of the case was submitted by those very Members. It is clear that they themselves, when making the reference to the High Court, were of the view that they had not anywhere recorded a finding that the firm had not come into existence in fact, because, if they had come to such a finding, no question of law could possibly have been referred by them to the High Court. The existence in law of a firm, which does not exist in fact, could not possibly be found by the High Court on the question referred. Consequently, we must reject the submission made on behalf of the Commissioner that, in this case, the High Court should have gone into the question of existence of the respondent firm as a question of fact; and in this appeal also, we must proceed on the basis that the respondent firm did in fact come into existence, and that all that the High Court was called upon to decide was whether it also came into existence in law8. It appears to us that, in this case, the submissions that were made on behalf of the Commissioner before the High Court and which have been made before us have ignored the effect of the important relevant documents and have unnecessarily placed too much reliance on the Deed of Relinquishment. The Tribunal found that a Kamala Town Trust had been constituted of which the three Singhania Brothers were the Trustees. The Tribunal also found that a deed of partnership was executed so as to constitute the firm Juggilal Kamalapat, consisting of two partners, the Kamala Town Trust, represented by the three trustees, and l Jhabbarmal Saraf. Their shares in the profits and losses were also specified in the deed of partnership. There was the further finding by the Income-tax Officer that the kamala Town Trust. which entered into the partnership, actually introduced a sum of Rs.50,000 as its capital in this partnership firm. On these facts by themselves, it should have been held that a valid partnership had come into existence11. The Deed of Relinquishment, in this case, was in respect of the individual interest of the three Singhania Brothers in the assets of the partnership firm in favour of the Kamala Town Trust, and consequently, did not require registration, even though the assets of the partnership firm included immovable property, and was valid without registration. As a result of this deed, all the assets of the partnership vested in the new partners of the firm12. In the alternative, we think that, even if it had been accepted that this deed of relinquishment required registration, that would not lead to the conclusion that the partnership seeking registration was not valid and had not come into existence in law. The deed of relinquishment could, at best. be held to he invalid insofar as it affected the immovable properties included in the assets of the firm; but to the extent that it purported to transfer movable assets of the firm, the document would remain valid. The deed could clearly be divided into two separate parts, one relating to immovable properties, and the other to movable assets; and the part of the deed dealing with movable assets could not be held invalid for want of registration. A deed of relinquishment is in the nature of a deed of gift, where the various properties dealt with are always separable, and the invalidity of the deed of gift in respect of one item cannot affect its validity in respect of another. This view was expressed by the Madras High Court in Perumal Ammal v. Perumal Naicker, ILR 44 Mad 196 : (AIR 1921 Mad 137 ). A deed of relinquishment, or a deed of gift, differs from a deed of partition in which it is not possible to hold that the partition is valid in respect of some properties and not in respect of others, because rights of persons being partitioned are adjusted with reference to the properties subject to partition as a whole. In the case before us, therefore, the deed of relinquishment was valid at least in respect of movable properties, and the partnership seeking registration, thus, became owner of all the movable assets of the partnership in addition to having contributed a sum of Rs. 50,000 as capital investment in it.
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National Engineering Industries Limited Vs. Shri Shri Kishan Bhageria & Others | of the President, the State law would prevail in that State even if there is an earlier law by the Parliament on a subject in the Concurrent List. It appears that both of these Acts tread the same field and if there was any conflict with each other, then S.28A of Rajasthan Act would apply being a later law. We find, however, that there is no conflict. The learned single Judge of the Rajasthan High Court in Poonam Talkies, Dausa v. Presiding Officer, Labour Court, Jaipur (S. B. Civil Writ Petn. No. 1206/85 decided on 9-6-1986) so. That decision has been upheld by the Division Bench of the Rajasthan High Court in Writ Appeal No. 231/86. The Division Bench of the High Court in the instant appeal relying on the said decision held that there was no scope for any repugnancy. It appears to us that it cannot be said that these two Acts do not tread the same field. Both these Acts deal with the rights of the workman or employee to get redressal and damages in case of dismissal or discharge, but there is no repugnancy because there is no conflict between these two Acts, in pith and substance. There is no inconsistency between these two acts. These two Acts, in our opinion, are supplemental to each other. 13. In Deep Chand v. State of U.P. (1959) Suppl (2) SCR 8 : (AIR 1959 SC 648 ), Subba Rao, J., as the learned Chief Justice then was, observed that the result of the authorities indicated was as follows (at p. 665 of AIR ) : "Nicholas in his Australian Constitution, 2nd Edition, p. 303, refers to three tests of inconsistency or repugnancy :1. There may be inconsistency in the actual terms of the competing statutes;2. Though there may be no direct conflict, a State law may be inoperative because the Commonwealth Code is intended to be a complete exhaustive Code; and3. Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter." 14. Quoting the aforesaid observations, this Court in M/s. Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45 at p. 87: (AIR 1983 SC 1019 at p. 1041) where A. P. Sen, J. exhaustively dealt with the principles of repugnancy and observed that one of the occasions where inconsistency or repugnancy arose was when on the same subject matter, one law would be repugnant to the other. Therefore, in order to raise a question of repugnancy two conditions must be fulfilled. The State law and the Union law must operate on the same field and one must be repugnant or inconsistent with the other. These are two conditions which are required to be fulfilled. These are cumulative conditions. Therefore, these laws must tread on the same field and these must be repugnantor inconsistent with each other. In our opinion, in this case there is a good deal of justification to hold that these laws, the Industrial Disputes Act and the Rajasthan Act tread on the same field and both laws deal with the rights of dismissed workman or employee. But these two laws are not inconsistent or repugnant to each other. The basic test of repugnancy is that if one prevails the other cannot prevail. That is not the position in this case. Learned counsel on behalf of the appellant, however, contended that in this case, there had been an application as indicated above under S.28A of the Rajasthan Act and which was dismissed on ground of limitation. Sree Shankar Ghosh tried to submit that there would be inconsistency or repugnancy between the two decisions, one given on limitation and the other if any relief is given under the Act. We are unable to accept this position, because the application under S.28A of the Rajasthan Act was dismissed not on merit but on limitation. There is a period of limitation provided under the Rajasthan Act of six months and it may be extended for reasonable cause. But there is no period of limitation as such provided under the Industrial Disputes Act. Therefore, that will be curtailment of the rights of the workmen or employees under the Industrial Disputes Act. In the situation S.37 declares that law should not be construed to curtail any of the rights of the workmen. As Poet Tennyson observed - "freedom broadens from precedent to precedent” so also it is correct to state that social welfare and labour welfare broadens from legislation to legislation in India. It will be a well settled principle of interpretation to proceed on that assumption and S.37 of the Rajasthan Act must be so construed. Therefore in no way the Rajasthan Act could be construed to curtail the rights of the work man to seek any relief or to go in for an adjudication in case of the termination of the employment. If that is the position in view of the provisions 6 months time in S.28A of the Rajasthan Act has to be ignored and that cannot have any binding effect inasmuch as it curtails the rights of the workman under the Industrial Disputes Act and that Act must prevail. In the premises, there is no conflict between the two Acts and there is no question of repugnancy.15. The High Court was, therefore, right in holding that the respondent was a workman and in granting relief on that basis. Before we conclude we note that our attention was drawn to certain observations of this Court that interference by the High Court in these matters at the initial stage protracts adjudication and defeats justice. Reference was made to certain observations in P. Maheshwari v. Delhi Admn., (AIR 1984 SC 153 ) (supra). But as mentioned hereinbefore in this case, the interference was made by the High Court not at the initial stage.16. In the premises, we are of the opinion that the High Court was right in the view it took. | 0[ds]9. In the instant case the evidence have been summarised by the Division Bench. Reference may be made to pages 65, 73, 80, 84 to 94, 95, 96 and 97 of the Paper Book which indicate the nature of duties performed by respondent 1 herein. His duties were mainly reporting and checking up on behalf of the management. A reporter or a checking clerk is not a supervisor. The respondent herein does not appear to us doing any kind of supervisory work. He was undoubtedly checking up on behalf of the employer but he had no independent right or authority to take decision and his decision did not bind the company. In that view of the matter keeping the correct principle of law in mind the Division Bench has come to the conclusion taking into consideration the evidence recorded before the Labour Court that the respondent is a workman and not a supervisor. That conclusion arrived at in the manner indicated above cannot, in our opinion, be interfered with under Art. 136 of the Constitution. It is not necessary for our present purpose to set out in extenso the evidence on record as discussed by the Division Bench. Our attention was, however, drawn by the counsel for the respondent to certain correspondence, for instance the letter at page 65 of the paper book bearing the date 14th of May, 1976 where the respondent reported that certain materials were lying in stores deptt. in absence of any decision. It was further reiterated that on inspection of the pieces that those pieces were found cracked. Similarly, our attention was drawn to several other letters and we have perused these letters. We are of the opinion that the Division Bench was right that these letters only indicated that the report was being made of the checking done by the respondent. A checker on behalf of the management or employer is not a supervisor.10. In the aforesaid view of the matter the conclusion of the Division Bench that respondent 1 is a workman has to be sustained. We do so accordingly.It has to be borne in mind that S.2A of the Act was amended to permit individual workman to ask for a reference in the case of individual dispute. This amendment was assented to by the President on 1st of December, 1965. The Rajasthan Act received the assent of the President on 14th of July, 1958. On 8th March, 1972 Chapter 6A including S.28A was inserted in the Rajasthan Act. Therefore the material provision of the Rajasthan Act is the subsequent Act. Under Art.254(2) of the Constitution if there was any law by the State which had been reserved for the assent of the President and has received the assent of the President, the State law would prevail in that State even if there is an earlier law by the Parliament on a subject in the Concurrent List. It appears that both of these Acts tread the same field and if there was any conflict with each other, then S.28A of Rajasthan Act would apply being a later law. We find, however, that there is no conflict. The learned single Judge of the Rajasthan High Court in Poonam Talkies, Dausa v. Presiding Officer, Labour Court, Jaipur (S. B. Civil Writ Petn. No. 1206/85 decided on 9-6-1986) so. That decision has been upheld by the Division Bench of the Rajasthan High Court in Writ Appeal No. 231/86. The Division Bench of the High Court in the instant appeal relying on the said decision held that there was no scope for any repugnancy. It appears to us that it cannot be said that these two Acts do not tread the same field. Both these Acts deal with the rights of the workman or employee to get redressal and damages in case of dismissal or discharge, but there is no repugnancy because there is no conflict between these two Acts, in pith and substance. There is no inconsistency between these two acts. These two Acts, in our opinion, are supplemental to each other.Quoting the aforesaid observations, this Court in M/s. Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45 at p. 87: (AIR 1983 SC 1019 at p. 1041) where A. P. Sen, J. exhaustively dealt with the principles of repugnancy and observed that one of the occasions where inconsistency or repugnancy arose was when on the same subject matter, one law would be repugnant to the other. Therefore, in order to raise a question of repugnancy two conditions must be fulfilled. The State law and the Union law must operate on the same field and one must be repugnant or inconsistent with the other. These are two conditions which are required to be fulfilled. These are cumulative conditions. Therefore, these laws must tread on the same field and these must be repugnantor inconsistent with each other. In our opinion, in this case there is a good deal of justification to hold that these laws, the Industrial Disputes Act and the Rajasthan Act tread on the same field and both laws deal with the rights of dismissed workman or employee. But these two laws are not inconsistent or repugnant to each other. The basic test of repugnancy is that if one prevails the other cannot prevail. That is not the position in this case. Learned counsel on behalf of the appellant, however, contended that in this case, there had been an application as indicated above under S.28A of the Rajasthan Act and which was dismissed on ground of limitation. Sree Shankar Ghosh tried to submit that there would be inconsistency or repugnancy between the two decisions, one given on limitation and the other if any relief is given under the Act. We are unable to accept this position, because the application under S.28A of the Rajasthan Act was dismissed not on merit but on limitation. There is a period of limitation provided under the Rajasthan Act of six months and it may be extended for reasonable cause. But there is no period of limitation as such provided under the Industrial Disputes Act. Therefore, that will be curtailment of the rights of the workmen or employees under the Industrial Disputes Act. In the situation S.37 declares that law should not be construed to curtail any of the rights of the workmen. As Poet Tennyson observed - "freedom broadens from precedent toso also it is correct to state that social welfare and labour welfare broadens from legislation to legislation in India. It will be a well settled principle of interpretation to proceed on that assumption and S.37 of the Rajasthan Act must be so construed. Therefore in no way the Rajasthan Act could be construed to curtail the rights of the work man to seek any relief or to go in for an adjudication in case of the termination of the employment. If that is the position in view of the provisions 6 months time in S.28A of the Rajasthan Act has to be ignored and that cannot have any binding effect inasmuch as it curtails the rights of the workman under the Industrial Disputes Act and that Act must prevail. In the premises, there is no conflict between the two Acts and there is no question of repugnancy.15. The High Court was, therefore, right in holding that the respondent was a workman and in granting relief on that basis. Before we conclude we note that our attention was drawn to certain observations of this Court that interference by the High Court in these matters at the initial stage protracts adjudication and defeats justice. Reference was made to certain observations in P. Maheshwari v. Delhi Admn., (AIR 1984 SC 153 ) (supra). But as mentioned hereinbefore in this case, the interference was made by the High Court not at the initial stage.16. In the premises, we are of the opinion that the High Court was right in the view it | 0 | 4,053 | 1,454 | ### Instruction:
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of the President, the State law would prevail in that State even if there is an earlier law by the Parliament on a subject in the Concurrent List. It appears that both of these Acts tread the same field and if there was any conflict with each other, then S.28A of Rajasthan Act would apply being a later law. We find, however, that there is no conflict. The learned single Judge of the Rajasthan High Court in Poonam Talkies, Dausa v. Presiding Officer, Labour Court, Jaipur (S. B. Civil Writ Petn. No. 1206/85 decided on 9-6-1986) so. That decision has been upheld by the Division Bench of the Rajasthan High Court in Writ Appeal No. 231/86. The Division Bench of the High Court in the instant appeal relying on the said decision held that there was no scope for any repugnancy. It appears to us that it cannot be said that these two Acts do not tread the same field. Both these Acts deal with the rights of the workman or employee to get redressal and damages in case of dismissal or discharge, but there is no repugnancy because there is no conflict between these two Acts, in pith and substance. There is no inconsistency between these two acts. These two Acts, in our opinion, are supplemental to each other. 13. In Deep Chand v. State of U.P. (1959) Suppl (2) SCR 8 : (AIR 1959 SC 648 ), Subba Rao, J., as the learned Chief Justice then was, observed that the result of the authorities indicated was as follows (at p. 665 of AIR ) : "Nicholas in his Australian Constitution, 2nd Edition, p. 303, refers to three tests of inconsistency or repugnancy :1. There may be inconsistency in the actual terms of the competing statutes;2. Though there may be no direct conflict, a State law may be inoperative because the Commonwealth Code is intended to be a complete exhaustive Code; and3. Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter." 14. Quoting the aforesaid observations, this Court in M/s. Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45 at p. 87: (AIR 1983 SC 1019 at p. 1041) where A. P. Sen, J. exhaustively dealt with the principles of repugnancy and observed that one of the occasions where inconsistency or repugnancy arose was when on the same subject matter, one law would be repugnant to the other. Therefore, in order to raise a question of repugnancy two conditions must be fulfilled. The State law and the Union law must operate on the same field and one must be repugnant or inconsistent with the other. These are two conditions which are required to be fulfilled. These are cumulative conditions. Therefore, these laws must tread on the same field and these must be repugnantor inconsistent with each other. In our opinion, in this case there is a good deal of justification to hold that these laws, the Industrial Disputes Act and the Rajasthan Act tread on the same field and both laws deal with the rights of dismissed workman or employee. But these two laws are not inconsistent or repugnant to each other. The basic test of repugnancy is that if one prevails the other cannot prevail. That is not the position in this case. Learned counsel on behalf of the appellant, however, contended that in this case, there had been an application as indicated above under S.28A of the Rajasthan Act and which was dismissed on ground of limitation. Sree Shankar Ghosh tried to submit that there would be inconsistency or repugnancy between the two decisions, one given on limitation and the other if any relief is given under the Act. We are unable to accept this position, because the application under S.28A of the Rajasthan Act was dismissed not on merit but on limitation. There is a period of limitation provided under the Rajasthan Act of six months and it may be extended for reasonable cause. But there is no period of limitation as such provided under the Industrial Disputes Act. Therefore, that will be curtailment of the rights of the workmen or employees under the Industrial Disputes Act. In the situation S.37 declares that law should not be construed to curtail any of the rights of the workmen. As Poet Tennyson observed - "freedom broadens from precedent to precedent” so also it is correct to state that social welfare and labour welfare broadens from legislation to legislation in India. It will be a well settled principle of interpretation to proceed on that assumption and S.37 of the Rajasthan Act must be so construed. Therefore in no way the Rajasthan Act could be construed to curtail the rights of the work man to seek any relief or to go in for an adjudication in case of the termination of the employment. If that is the position in view of the provisions 6 months time in S.28A of the Rajasthan Act has to be ignored and that cannot have any binding effect inasmuch as it curtails the rights of the workman under the Industrial Disputes Act and that Act must prevail. In the premises, there is no conflict between the two Acts and there is no question of repugnancy.15. The High Court was, therefore, right in holding that the respondent was a workman and in granting relief on that basis. Before we conclude we note that our attention was drawn to certain observations of this Court that interference by the High Court in these matters at the initial stage protracts adjudication and defeats justice. Reference was made to certain observations in P. Maheshwari v. Delhi Admn., (AIR 1984 SC 153 ) (supra). But as mentioned hereinbefore in this case, the interference was made by the High Court not at the initial stage.16. In the premises, we are of the opinion that the High Court was right in the view it took.
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view of the matter the conclusion of the Division Bench that respondent 1 is a workman has to be sustained. We do so accordingly.It has to be borne in mind that S.2A of the Act was amended to permit individual workman to ask for a reference in the case of individual dispute. This amendment was assented to by the President on 1st of December, 1965. The Rajasthan Act received the assent of the President on 14th of July, 1958. On 8th March, 1972 Chapter 6A including S.28A was inserted in the Rajasthan Act. Therefore the material provision of the Rajasthan Act is the subsequent Act. Under Art.254(2) of the Constitution if there was any law by the State which had been reserved for the assent of the President and has received the assent of the President, the State law would prevail in that State even if there is an earlier law by the Parliament on a subject in the Concurrent List. It appears that both of these Acts tread the same field and if there was any conflict with each other, then S.28A of Rajasthan Act would apply being a later law. We find, however, that there is no conflict. The learned single Judge of the Rajasthan High Court in Poonam Talkies, Dausa v. Presiding Officer, Labour Court, Jaipur (S. B. Civil Writ Petn. No. 1206/85 decided on 9-6-1986) so. That decision has been upheld by the Division Bench of the Rajasthan High Court in Writ Appeal No. 231/86. The Division Bench of the High Court in the instant appeal relying on the said decision held that there was no scope for any repugnancy. It appears to us that it cannot be said that these two Acts do not tread the same field. Both these Acts deal with the rights of the workman or employee to get redressal and damages in case of dismissal or discharge, but there is no repugnancy because there is no conflict between these two Acts, in pith and substance. There is no inconsistency between these two acts. These two Acts, in our opinion, are supplemental to each other.Quoting the aforesaid observations, this Court in M/s. Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45 at p. 87: (AIR 1983 SC 1019 at p. 1041) where A. P. Sen, J. exhaustively dealt with the principles of repugnancy and observed that one of the occasions where inconsistency or repugnancy arose was when on the same subject matter, one law would be repugnant to the other. Therefore, in order to raise a question of repugnancy two conditions must be fulfilled. The State law and the Union law must operate on the same field and one must be repugnant or inconsistent with the other. These are two conditions which are required to be fulfilled. These are cumulative conditions. Therefore, these laws must tread on the same field and these must be repugnantor inconsistent with each other. In our opinion, in this case there is a good deal of justification to hold that these laws, the Industrial Disputes Act and the Rajasthan Act tread on the same field and both laws deal with the rights of dismissed workman or employee. But these two laws are not inconsistent or repugnant to each other. The basic test of repugnancy is that if one prevails the other cannot prevail. That is not the position in this case. Learned counsel on behalf of the appellant, however, contended that in this case, there had been an application as indicated above under S.28A of the Rajasthan Act and which was dismissed on ground of limitation. Sree Shankar Ghosh tried to submit that there would be inconsistency or repugnancy between the two decisions, one given on limitation and the other if any relief is given under the Act. We are unable to accept this position, because the application under S.28A of the Rajasthan Act was dismissed not on merit but on limitation. There is a period of limitation provided under the Rajasthan Act of six months and it may be extended for reasonable cause. But there is no period of limitation as such provided under the Industrial Disputes Act. Therefore, that will be curtailment of the rights of the workmen or employees under the Industrial Disputes Act. In the situation S.37 declares that law should not be construed to curtail any of the rights of the workmen. As Poet Tennyson observed - "freedom broadens from precedent toso also it is correct to state that social welfare and labour welfare broadens from legislation to legislation in India. It will be a well settled principle of interpretation to proceed on that assumption and S.37 of the Rajasthan Act must be so construed. Therefore in no way the Rajasthan Act could be construed to curtail the rights of the work man to seek any relief or to go in for an adjudication in case of the termination of the employment. If that is the position in view of the provisions 6 months time in S.28A of the Rajasthan Act has to be ignored and that cannot have any binding effect inasmuch as it curtails the rights of the workman under the Industrial Disputes Act and that Act must prevail. In the premises, there is no conflict between the two Acts and there is no question of repugnancy.15. The High Court was, therefore, right in holding that the respondent was a workman and in granting relief on that basis. Before we conclude we note that our attention was drawn to certain observations of this Court that interference by the High Court in these matters at the initial stage protracts adjudication and defeats justice. Reference was made to certain observations in P. Maheshwari v. Delhi Admn., (AIR 1984 SC 153 ) (supra). But as mentioned hereinbefore in this case, the interference was made by the High Court not at the initial stage.16. In the premises, we are of the opinion that the High Court was right in the view it
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State Of A P Vs. Patnam Anandam | report made to him clearly disclosed the commission of a cognizable offence by the respondent. The name of the person making the report was also known to him. Assuming that he did not consider it necessary to draw up a first information report on the basis of such telephonic information, he would have certainly made a note of it in the station diary. There is no evidence to show that any station diary entry was made. PW-11 claimed that he had also sent a report to the police. That report has not been produced before the Court. Thus, neither the oral report made to the investigating officer by PW-11, nor the written report said to have been sent to the police by PW-11 has been proved by evidence brought on record. Therefore, the court is deprived of the initial reports said to have been made by PW-11. One also fails to understand why the investigating officer did not immediately proceed to the place of occurrence, having come to know that the respondent had committed the murder of the his wife. The village of occurrence was hardly 4 kms. from the police station, and yet the admitted case is that he came to the village at 6.30 A.M. It was at the place of occurrence that PW-11 is said to have made a report to him on the basis of which a formal first information report was drawn up. These facts lead us to doubt the case of the prosecution that any report was made at 7.00 P.M. by PW-1 to the Sarpanch of the village, and that he had reported the matter to the police at 11.00 P.M. The fact that the police arrived at the spot at about 6.30 A.M. when a report was lodged by PW-11 for the first time, leads one to suspect that the death of the deceased came to light some time early in the morning of 8th November, 1992, and only thereafter the investigative machinery was put into motion. This finding of ours reduces the significance of the incriminating circumstance that the respondent was last seen in the company of the deceased at 4.00 P.M. on the earlier day. 11. The next significant circumstance is the fact that the respondent had given a wrong information about the cause of death of deceased. It is no doubt true that the medial evidence conclusively establishes the fact that the deceased was battered by a hard and blunt object and her neck was pressed with such force that even the hyoid bone was fractured. However, the statement made by PW-1 to the Sarpanch PW-11 that his son had informed him that the deceased had died after consuming pesticide, is not admissible in evidence, being hit by the rule against hearsay. This circumstance cannot, therefore, be relied upon by the prosecution to prove that the respondent had given a fake explanation for the death of the deceased. 12. The most crucial circumstance which could have linked the respondent with the murder of the deceased is the finding of a cloth piece and two buttons near the body of the deceased, which according to the prosecution were parts of the shirt worn by the respondent on the date of occurrence. It was urged before us that the respondent made a disclosure statement on 22.11.1992 and produced a shirt from his house voluntarily which was worn by him on the date of occurrence. The case of the prosecution is that while resisting the assault on her, the deceased may have caught hold of the pocket of the shirt and in the struggle that ensued, the pocket was torn off and two buttons also fell off near the place of occurrence. Unfortunately, the prosecution had led no evidence to connect the shirt with the piece of cloth found near the place of occurrence. Counsel for the respondent submitted that the respondent was arrested on 8th November, 1992 and the alleged disclosure statement is said to have made on 22nd November, 1992. The disclosure statement made after such delay has no value. We will assume in favour of the prosecution that a disclosure statement was made on 22nd November, 1992 and pursuant thereto the respondent produced before the police a shirt, which according to the prosecution, was worn by him on the date of occurrence. The seizure memo of the shirt shows that the shirt was a white shirt with red patterns of flower appeared that the pocket of the shirt was torn apart. Two buttons were also missing from the shirt. The site plan Exhibit P-3 discloses that near the dead body was found a torn shirt pocket and two white buttons. The colour of the shirt pocket found has not been disclosed in the panchnama. It is, therefore, difficult to connect the torn shirt pocket with the shirt which was recovered at the instance of the respondent. This apart, we find that no evidence has been adduced by the prosecution to establish that the piece of cloth found at the place of occurrence was really a part of the shirt which was recovered at the instance of the respondent. No witness has said so. Moreover, the circumstances that the pocket of the shirt worn by the accused at the time of committing the offence was found at the scene of occurrence, was not even put to the respondent in his examination under Section 313 Cr.P.C. It is, therefore, difficult to reply upon, as an incriminating circumstance, the recovery of two buttons and a piece of cloth, said to be the pocket of a shirt, from the place of occurrence, in the absence of any evidence to connect the said piece of cloth with the shirt of the accused. 13. In this state of the evidence on record, we are of the view that the respondent is entitled to an acquittal by giving to him the benefit of doubt, though for reasons different from the reasons recorded by the High Court. | 0[ds]9. There are three circumstances noticed by the trial court which are of considerable significance and they arefirstly, that the accused was last seen in the company of the deceased by the mother of the deceased, secondly, that a torn piece of a shirt and buttons found at the scene of offence matched with the shirt MO1 seized from the house of the accused and lastly, that the accused gave a false statement that his wife had died of poisoning, whereas the medical evidence disclosed that she had been brutally assaulted with some blunt object resulting in the fracture of several ribs and causing other injuries which ultimately resulted in her death11. The next significant circumstance is the fact that the respondent had given a wrong information about the cause of death of deceased. It is no doubt true that the medial evidence conclusively establishes the fact that the deceased was battered by a hard and blunt object and her neck was pressed with such force that even the hyoid bone was fractured. However, the statement made by1 to the Sarpanch1 that his son had informed him that the deceased had died after consuming pesticide, is not admissible in evidence, being hit by the rule against hearsay. This circumstance cannot, therefore, be relied upon by the prosecution to prove that the respondent had given a fake explanation for the death of the deceased12. The most crucial circumstance which could have linked the respondent with the murder of the deceased is the finding of a cloth piece and two buttons near the body of the deceased, which according to the prosecution were parts of the shirt worn by the respondent on the date of occurrence. It was urged before us that the respondent made a disclosure statement on 22.11.1992 and produced a shirt from his house voluntarily which was worn by him on the date of occurrence. The case of the prosecution is that while resisting the assault on her, the deceased may have caught hold of the pocket of the shirt and in the struggle that ensued, the pocket was torn off and two buttons also fell off near the place of occurrence. Unfortunately, the prosecution had led no evidence to connect the shirt with the piece of cloth found near the place of occurrence. Counsel for the respondent submitted that the respondent was arrested on 8th November, 1992 and the alleged disclosure statement is said to have made on 22nd November, 1992. The disclosure statement made after such delay has no value. We will assume in favour of the prosecution that a disclosure statement was made on 22nd November, 1992 and pursuant thereto the respondent produced before the police a shirt, which according to the prosecution, was worn by him on the date of occurrence. The seizure memo of the shirt shows that the shirt was a white shirt with red patterns of flower appeared that the pocket of the shirt was torn apart. Two buttons were also missing from the shirt. The site plan Exhibit3 discloses that near the dead body was found a torn shirt pocket and two white buttons. The colour of the shirt pocket found has not been disclosed in the panchnama. It is, therefore, difficult to connect the torn shirt pocket with the shirt which was recovered at the instance of the respondent. This apart, we find that no evidence has been adduced by the prosecution to establish that the piece of cloth found at the place of occurrence was really a part of the shirt which was recovered at the instance of the respondent. No witness has said so. Moreover, the circumstances that the pocket of the shirt worn by the accused at the time of committing the offence was found at the scene of occurrence, was not even put to the respondent in his examination under Section 313 Cr.P.C. It is, therefore, difficult to reply upon, as an incriminating circumstance, the recovery of two buttons and a piece of cloth, said to be the pocket of a shirt, from the place of occurrence, in the absence of any evidence to connect the said piece of cloth with the shirt of the accused13. In this state of the evidence on record, we are of the view that the respondent is entitled to an acquittal by giving to him the benefit of doubt, though for reasons different from the reasons recorded by the High Court. | 0 | 2,872 | 802 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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report made to him clearly disclosed the commission of a cognizable offence by the respondent. The name of the person making the report was also known to him. Assuming that he did not consider it necessary to draw up a first information report on the basis of such telephonic information, he would have certainly made a note of it in the station diary. There is no evidence to show that any station diary entry was made. PW-11 claimed that he had also sent a report to the police. That report has not been produced before the Court. Thus, neither the oral report made to the investigating officer by PW-11, nor the written report said to have been sent to the police by PW-11 has been proved by evidence brought on record. Therefore, the court is deprived of the initial reports said to have been made by PW-11. One also fails to understand why the investigating officer did not immediately proceed to the place of occurrence, having come to know that the respondent had committed the murder of the his wife. The village of occurrence was hardly 4 kms. from the police station, and yet the admitted case is that he came to the village at 6.30 A.M. It was at the place of occurrence that PW-11 is said to have made a report to him on the basis of which a formal first information report was drawn up. These facts lead us to doubt the case of the prosecution that any report was made at 7.00 P.M. by PW-1 to the Sarpanch of the village, and that he had reported the matter to the police at 11.00 P.M. The fact that the police arrived at the spot at about 6.30 A.M. when a report was lodged by PW-11 for the first time, leads one to suspect that the death of the deceased came to light some time early in the morning of 8th November, 1992, and only thereafter the investigative machinery was put into motion. This finding of ours reduces the significance of the incriminating circumstance that the respondent was last seen in the company of the deceased at 4.00 P.M. on the earlier day. 11. The next significant circumstance is the fact that the respondent had given a wrong information about the cause of death of deceased. It is no doubt true that the medial evidence conclusively establishes the fact that the deceased was battered by a hard and blunt object and her neck was pressed with such force that even the hyoid bone was fractured. However, the statement made by PW-1 to the Sarpanch PW-11 that his son had informed him that the deceased had died after consuming pesticide, is not admissible in evidence, being hit by the rule against hearsay. This circumstance cannot, therefore, be relied upon by the prosecution to prove that the respondent had given a fake explanation for the death of the deceased. 12. The most crucial circumstance which could have linked the respondent with the murder of the deceased is the finding of a cloth piece and two buttons near the body of the deceased, which according to the prosecution were parts of the shirt worn by the respondent on the date of occurrence. It was urged before us that the respondent made a disclosure statement on 22.11.1992 and produced a shirt from his house voluntarily which was worn by him on the date of occurrence. The case of the prosecution is that while resisting the assault on her, the deceased may have caught hold of the pocket of the shirt and in the struggle that ensued, the pocket was torn off and two buttons also fell off near the place of occurrence. Unfortunately, the prosecution had led no evidence to connect the shirt with the piece of cloth found near the place of occurrence. Counsel for the respondent submitted that the respondent was arrested on 8th November, 1992 and the alleged disclosure statement is said to have made on 22nd November, 1992. The disclosure statement made after such delay has no value. We will assume in favour of the prosecution that a disclosure statement was made on 22nd November, 1992 and pursuant thereto the respondent produced before the police a shirt, which according to the prosecution, was worn by him on the date of occurrence. The seizure memo of the shirt shows that the shirt was a white shirt with red patterns of flower appeared that the pocket of the shirt was torn apart. Two buttons were also missing from the shirt. The site plan Exhibit P-3 discloses that near the dead body was found a torn shirt pocket and two white buttons. The colour of the shirt pocket found has not been disclosed in the panchnama. It is, therefore, difficult to connect the torn shirt pocket with the shirt which was recovered at the instance of the respondent. This apart, we find that no evidence has been adduced by the prosecution to establish that the piece of cloth found at the place of occurrence was really a part of the shirt which was recovered at the instance of the respondent. No witness has said so. Moreover, the circumstances that the pocket of the shirt worn by the accused at the time of committing the offence was found at the scene of occurrence, was not even put to the respondent in his examination under Section 313 Cr.P.C. It is, therefore, difficult to reply upon, as an incriminating circumstance, the recovery of two buttons and a piece of cloth, said to be the pocket of a shirt, from the place of occurrence, in the absence of any evidence to connect the said piece of cloth with the shirt of the accused. 13. In this state of the evidence on record, we are of the view that the respondent is entitled to an acquittal by giving to him the benefit of doubt, though for reasons different from the reasons recorded by the High Court.
### Response:
0
### Explanation:
9. There are three circumstances noticed by the trial court which are of considerable significance and they arefirstly, that the accused was last seen in the company of the deceased by the mother of the deceased, secondly, that a torn piece of a shirt and buttons found at the scene of offence matched with the shirt MO1 seized from the house of the accused and lastly, that the accused gave a false statement that his wife had died of poisoning, whereas the medical evidence disclosed that she had been brutally assaulted with some blunt object resulting in the fracture of several ribs and causing other injuries which ultimately resulted in her death11. The next significant circumstance is the fact that the respondent had given a wrong information about the cause of death of deceased. It is no doubt true that the medial evidence conclusively establishes the fact that the deceased was battered by a hard and blunt object and her neck was pressed with such force that even the hyoid bone was fractured. However, the statement made by1 to the Sarpanch1 that his son had informed him that the deceased had died after consuming pesticide, is not admissible in evidence, being hit by the rule against hearsay. This circumstance cannot, therefore, be relied upon by the prosecution to prove that the respondent had given a fake explanation for the death of the deceased12. The most crucial circumstance which could have linked the respondent with the murder of the deceased is the finding of a cloth piece and two buttons near the body of the deceased, which according to the prosecution were parts of the shirt worn by the respondent on the date of occurrence. It was urged before us that the respondent made a disclosure statement on 22.11.1992 and produced a shirt from his house voluntarily which was worn by him on the date of occurrence. The case of the prosecution is that while resisting the assault on her, the deceased may have caught hold of the pocket of the shirt and in the struggle that ensued, the pocket was torn off and two buttons also fell off near the place of occurrence. Unfortunately, the prosecution had led no evidence to connect the shirt with the piece of cloth found near the place of occurrence. Counsel for the respondent submitted that the respondent was arrested on 8th November, 1992 and the alleged disclosure statement is said to have made on 22nd November, 1992. The disclosure statement made after such delay has no value. We will assume in favour of the prosecution that a disclosure statement was made on 22nd November, 1992 and pursuant thereto the respondent produced before the police a shirt, which according to the prosecution, was worn by him on the date of occurrence. The seizure memo of the shirt shows that the shirt was a white shirt with red patterns of flower appeared that the pocket of the shirt was torn apart. Two buttons were also missing from the shirt. The site plan Exhibit3 discloses that near the dead body was found a torn shirt pocket and two white buttons. The colour of the shirt pocket found has not been disclosed in the panchnama. It is, therefore, difficult to connect the torn shirt pocket with the shirt which was recovered at the instance of the respondent. This apart, we find that no evidence has been adduced by the prosecution to establish that the piece of cloth found at the place of occurrence was really a part of the shirt which was recovered at the instance of the respondent. No witness has said so. Moreover, the circumstances that the pocket of the shirt worn by the accused at the time of committing the offence was found at the scene of occurrence, was not even put to the respondent in his examination under Section 313 Cr.P.C. It is, therefore, difficult to reply upon, as an incriminating circumstance, the recovery of two buttons and a piece of cloth, said to be the pocket of a shirt, from the place of occurrence, in the absence of any evidence to connect the said piece of cloth with the shirt of the accused13. In this state of the evidence on record, we are of the view that the respondent is entitled to an acquittal by giving to him the benefit of doubt, though for reasons different from the reasons recorded by the High Court.
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Amar Krishna Ghose Vs. Life Insurance Corporation Of India & Anr | December 1955, a liability, which the Custodian and later on the Corporation were liable to satisfy, the former as a result of the management having vested in him under the Ordinance, and the latter as a result of its having succeeded to the assets and liabilities of the insurer. He also contended that the question as to whether the appellants contract of service with respondent 2 stood terminated on January 19, 1956 under cl. 3 (2) of the Ordinance would also not fall under R. 12A. The Addl. Solicitor-General, on the other hand, disputed such a construction of R. 12A and contended that the tribunal had under Rule the exclusive jurisdiction to determine both the questions, and the High Court could not by reason of S. 41 of the Act entertain or adjudge either of the two questions. 8. The reliefs prayed for by the appellant in his plaint pertained to two periods; (1) Rs. 5436.0.0 being the arrears of salary and other dues for the months of November and December 1955, and (2) Rs. one lac and odd being the salary from January 1, 1956 to December 1958. Under R. 12A, a question either of liability or of any nature whatsoever in relation to the assets or liabilities pertaining to the controlled business of the insurer transferred to and vested in the Corporation falls within the jurisdiction of the tribunal and cannot be entertained and adjudicated by a civil Court under S. 41 of the Act. In respect of the claim for arrears of salary for November and December 1955, the question really would be one of liability in regard to or pertaining to the controlled business of the insurer which became transferred to and vested in the Corporation. That question, therefore, fell fairly and squarely within the jurisdiction of the tribunal. The expression "controlled business of the insurer" in R. 12A means the life insurance business carried on by an insurer before its management became vested in a Custodian under the Ordinance and whose assets and liabilities became transferred to and vested in the Corporation under the Act. R. 12A clearly deals with questions arising out of and pertaining to such controlled business. Under R. 12A, jurisdiction to try questions in respect of the liability pertaining to such business has been vested in the tribunal. The question of the liability of the Corporation in regard to the arrears of salary for November and December 1955 clearly related to the controlled business then carried on by respondent 2. The Corporation was sought to be made liable to pay those arrears on the ground that that liability was transferred to and vested in the Corporation. Clearly R. 12A applied to such a question and the jurisdiction to try such a question was in the tribunal and not the High Court. Any question, therefore, as to the liability pertaining to the business which was the controlled business as defined by the Act would have to be tried by the tribunal. 9. As regards the second claim of the appellant, that claim involved the question as to whether his contract of service with respondent 2 stood terminated on January 19, 1956 by virtue of cl. 3 (2) of the Ordinance. If it did, he would not be a person who was employed by the insurer wholly or mainly in connection with his controlled business immediately before the appointed day (which is September 1, 1956 under the Act) as required by Section 11 (1) of the Act, and therefore, he could not claim to be one who became and continued to be an employee of the Corporation as envisaged by that sub-section. Under sub-sec. (3) of Section 11, the question whether an employee was employed wholly or mainly in connection with the controlled business of an insurer immediately before the appointed day under the Act (i.e., September 1, 1956) is determinable by the Central Government and not by a civil Court. That question, however, would depend upon the question whether the appellants contract of service stood terminated by reason of cl. 3 (2) of the Ordinance on September 1, 1956. Has the tribunal the exclusive jurisdiction to decide that question ?The High Court though so, and in our view rightly because R. 12A confers on the tribunal the jurisdiction to try "any question.......of any nature whatsoever in relation to.............liabilities pertaining to the controlled business of the insurer transferred to and vested in the Corporation". These are very wide words which would include the question whether the appellant as the principal officer of respondent 2 continued to be such officer after January 19, 1956 in relation to the controlled business which on and after January 19, 1956 was to be managed in terms of the Ordinance by a custodian appointed thereunder and whose assets and liabilities on the passing of the Act were transferred to and vested in the Corporation. The question whether his contract of employment as the principal officer of the business, defined as the controlled business both under the Ordinance and the Act, continued or not after January 19, 1956 would be a question in relation to the liability pertaining to such controlled business and was therefore within the scope of R. 12A. But the question as to whether he became an employee of the Corporation under S. 11 (1) on and from January 1, 1956, though dependent on the answer as to whether his contract stood terminated under cl. 3 (2) of the Ordinance, would not fall within R. 12A and was not therefore triable by the Tribunal. The High Court, therefore, was right in splitting the appellants claim into two, one triable by the tribunal and the other not, and retaining with it that part of the suit which did not fall within the scope of R. 12A with liberty to the parties to raise later on the question whether that part was triable by the Court or by the Central Government under S. 11 (3) of the Act. | 0[ds]8. The reliefs prayed for by the appellant in his plaint pertained to two periods; (1) Rs. 5436.0.0 being the arrears of salary and other dues for the months of November and December 1955, and (2) Rs. one lac and odd being the salary from January 1, 1956 to December 1958. Under R. 12A, a question either of liability or of any nature whatsoever in relation to the assets or liabilities pertaining to the controlled business of the insurer transferred to and vested in the Corporation falls within the jurisdiction of the tribunal and cannot be entertained and adjudicated by a civil Court under S. 41 of the Act. In respect of the claim for arrears of salary for November and December 1955, the question really would be one of liability in regard to or pertaining to the controlled business of the insurer which became transferred to and vested in the Corporation. That question, therefore, fell fairly and squarely within the jurisdiction of the tribunal. The expression "controlled business of the insurer" in R. 12A means the life insurance business carried on by an insurer before its management became vested in a Custodian under the Ordinance and whose assets and liabilities became transferred to and vested in the Corporation under the Act. R. 12A clearly deals with questions arising out of and pertaining to such controlled business. Under R. 12A, jurisdiction to try questions in respect of the liability pertaining to such business has been vested in the tribunal. The question of the liability of the Corporation in regard to the arrears of salary for November and December 1955 clearly related to the controlled business then carried on by respondent 2. The Corporation was sought to be made liable to pay those arrears on the ground that that liability was transferred to and vested in the Corporation. Clearly R. 12A applied to such a question and the jurisdiction to try such a question was in the tribunal and not the High Court. Any question, therefore, as to the liability pertaining to the business which was the controlled business as defined by the Act would have to be tried by the tribunal9. As regards the second claim of the appellant, that claim involved the question as towhether his contract of service with respondent 2 stood terminated on January 19, 1956 by virtue of cl. 3 (2) of theOrdinance.If it did, he would not be a person who was employed by the insurer wholly or mainly in connection with his controlled business immediately before the appointed day (which is September 1, 1956 under the Act) as required by Section 11 (1) of the Act, and therefore, he could not claim to be one who became and continued to be an employee of the Corporation as envisaged by that sub-section. Under sub-sec. (3) of Section 11, the question whether an employee was employed wholly or mainly in connection with the controlled business of an insurer immediately before the appointed day under the Act (i.e., September 1, 1956) is determinable by the Central Government and not by a civil Court. That question, however, would depend upon the question whether the appellants contract of service stood terminated by reason of cl. 3 (2) of the Ordinance on September 1, 1956. Has the tribunal the exclusive jurisdiction to decide that question ?The High Court though so, and in our view rightly because R. 12A confers on the tribunal the jurisdiction to try "any question.......of any nature whatsoever in relation to.............liabilities pertaining to the controlled business of the insurer transferred to and vested in the Corporation". These are very wide words which would include the question whether the appellant as the principal officer of respondent 2 continued to be such officer after January 19, 1956 in relation to the controlled business which on and after January 19, 1956 was to be managed in terms of the Ordinance by a custodian appointed thereunder and whose assets and liabilities on the passing of the Act were transferred to and vested in the Corporation. The question whether his contract of employment as the principal officer of the business, defined as the controlled business both under the Ordinance and the Act, continued or not after January 19, 1956 would be a question in relation to the liability pertaining to such controlled business and was therefore within the scope of R. 12A. But the question as to whether he became an employee of the Corporation under S. 11 (1) on and from January 1, 1956, though dependent on the answer as to whether his contract stood terminated under cl. 3 (2) of the Ordinance, would not fall within R. 12A and was not therefore triable by the Tribunal. The High Court, therefore, was right in splitting the appellants claim into two, one triable by the tribunal and the other not, and retaining with it that part of the suit which did not fall within the scope of R. 12A with liberty to the parties to raise later on the question whether that part was triable by the Court or by the Central Government under S. 11 (3) of the Act. | 0 | 3,475 | 955 | ### 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:
December 1955, a liability, which the Custodian and later on the Corporation were liable to satisfy, the former as a result of the management having vested in him under the Ordinance, and the latter as a result of its having succeeded to the assets and liabilities of the insurer. He also contended that the question as to whether the appellants contract of service with respondent 2 stood terminated on January 19, 1956 under cl. 3 (2) of the Ordinance would also not fall under R. 12A. The Addl. Solicitor-General, on the other hand, disputed such a construction of R. 12A and contended that the tribunal had under Rule the exclusive jurisdiction to determine both the questions, and the High Court could not by reason of S. 41 of the Act entertain or adjudge either of the two questions. 8. The reliefs prayed for by the appellant in his plaint pertained to two periods; (1) Rs. 5436.0.0 being the arrears of salary and other dues for the months of November and December 1955, and (2) Rs. one lac and odd being the salary from January 1, 1956 to December 1958. Under R. 12A, a question either of liability or of any nature whatsoever in relation to the assets or liabilities pertaining to the controlled business of the insurer transferred to and vested in the Corporation falls within the jurisdiction of the tribunal and cannot be entertained and adjudicated by a civil Court under S. 41 of the Act. In respect of the claim for arrears of salary for November and December 1955, the question really would be one of liability in regard to or pertaining to the controlled business of the insurer which became transferred to and vested in the Corporation. That question, therefore, fell fairly and squarely within the jurisdiction of the tribunal. The expression "controlled business of the insurer" in R. 12A means the life insurance business carried on by an insurer before its management became vested in a Custodian under the Ordinance and whose assets and liabilities became transferred to and vested in the Corporation under the Act. R. 12A clearly deals with questions arising out of and pertaining to such controlled business. Under R. 12A, jurisdiction to try questions in respect of the liability pertaining to such business has been vested in the tribunal. The question of the liability of the Corporation in regard to the arrears of salary for November and December 1955 clearly related to the controlled business then carried on by respondent 2. The Corporation was sought to be made liable to pay those arrears on the ground that that liability was transferred to and vested in the Corporation. Clearly R. 12A applied to such a question and the jurisdiction to try such a question was in the tribunal and not the High Court. Any question, therefore, as to the liability pertaining to the business which was the controlled business as defined by the Act would have to be tried by the tribunal. 9. As regards the second claim of the appellant, that claim involved the question as to whether his contract of service with respondent 2 stood terminated on January 19, 1956 by virtue of cl. 3 (2) of the Ordinance. If it did, he would not be a person who was employed by the insurer wholly or mainly in connection with his controlled business immediately before the appointed day (which is September 1, 1956 under the Act) as required by Section 11 (1) of the Act, and therefore, he could not claim to be one who became and continued to be an employee of the Corporation as envisaged by that sub-section. Under sub-sec. (3) of Section 11, the question whether an employee was employed wholly or mainly in connection with the controlled business of an insurer immediately before the appointed day under the Act (i.e., September 1, 1956) is determinable by the Central Government and not by a civil Court. That question, however, would depend upon the question whether the appellants contract of service stood terminated by reason of cl. 3 (2) of the Ordinance on September 1, 1956. Has the tribunal the exclusive jurisdiction to decide that question ?The High Court though so, and in our view rightly because R. 12A confers on the tribunal the jurisdiction to try "any question.......of any nature whatsoever in relation to.............liabilities pertaining to the controlled business of the insurer transferred to and vested in the Corporation". These are very wide words which would include the question whether the appellant as the principal officer of respondent 2 continued to be such officer after January 19, 1956 in relation to the controlled business which on and after January 19, 1956 was to be managed in terms of the Ordinance by a custodian appointed thereunder and whose assets and liabilities on the passing of the Act were transferred to and vested in the Corporation. The question whether his contract of employment as the principal officer of the business, defined as the controlled business both under the Ordinance and the Act, continued or not after January 19, 1956 would be a question in relation to the liability pertaining to such controlled business and was therefore within the scope of R. 12A. But the question as to whether he became an employee of the Corporation under S. 11 (1) on and from January 1, 1956, though dependent on the answer as to whether his contract stood terminated under cl. 3 (2) of the Ordinance, would not fall within R. 12A and was not therefore triable by the Tribunal. The High Court, therefore, was right in splitting the appellants claim into two, one triable by the tribunal and the other not, and retaining with it that part of the suit which did not fall within the scope of R. 12A with liberty to the parties to raise later on the question whether that part was triable by the Court or by the Central Government under S. 11 (3) of the Act.
### Response:
0
### Explanation:
8. The reliefs prayed for by the appellant in his plaint pertained to two periods; (1) Rs. 5436.0.0 being the arrears of salary and other dues for the months of November and December 1955, and (2) Rs. one lac and odd being the salary from January 1, 1956 to December 1958. Under R. 12A, a question either of liability or of any nature whatsoever in relation to the assets or liabilities pertaining to the controlled business of the insurer transferred to and vested in the Corporation falls within the jurisdiction of the tribunal and cannot be entertained and adjudicated by a civil Court under S. 41 of the Act. In respect of the claim for arrears of salary for November and December 1955, the question really would be one of liability in regard to or pertaining to the controlled business of the insurer which became transferred to and vested in the Corporation. That question, therefore, fell fairly and squarely within the jurisdiction of the tribunal. The expression "controlled business of the insurer" in R. 12A means the life insurance business carried on by an insurer before its management became vested in a Custodian under the Ordinance and whose assets and liabilities became transferred to and vested in the Corporation under the Act. R. 12A clearly deals with questions arising out of and pertaining to such controlled business. Under R. 12A, jurisdiction to try questions in respect of the liability pertaining to such business has been vested in the tribunal. The question of the liability of the Corporation in regard to the arrears of salary for November and December 1955 clearly related to the controlled business then carried on by respondent 2. The Corporation was sought to be made liable to pay those arrears on the ground that that liability was transferred to and vested in the Corporation. Clearly R. 12A applied to such a question and the jurisdiction to try such a question was in the tribunal and not the High Court. Any question, therefore, as to the liability pertaining to the business which was the controlled business as defined by the Act would have to be tried by the tribunal9. As regards the second claim of the appellant, that claim involved the question as towhether his contract of service with respondent 2 stood terminated on January 19, 1956 by virtue of cl. 3 (2) of theOrdinance.If it did, he would not be a person who was employed by the insurer wholly or mainly in connection with his controlled business immediately before the appointed day (which is September 1, 1956 under the Act) as required by Section 11 (1) of the Act, and therefore, he could not claim to be one who became and continued to be an employee of the Corporation as envisaged by that sub-section. Under sub-sec. (3) of Section 11, the question whether an employee was employed wholly or mainly in connection with the controlled business of an insurer immediately before the appointed day under the Act (i.e., September 1, 1956) is determinable by the Central Government and not by a civil Court. That question, however, would depend upon the question whether the appellants contract of service stood terminated by reason of cl. 3 (2) of the Ordinance on September 1, 1956. Has the tribunal the exclusive jurisdiction to decide that question ?The High Court though so, and in our view rightly because R. 12A confers on the tribunal the jurisdiction to try "any question.......of any nature whatsoever in relation to.............liabilities pertaining to the controlled business of the insurer transferred to and vested in the Corporation". These are very wide words which would include the question whether the appellant as the principal officer of respondent 2 continued to be such officer after January 19, 1956 in relation to the controlled business which on and after January 19, 1956 was to be managed in terms of the Ordinance by a custodian appointed thereunder and whose assets and liabilities on the passing of the Act were transferred to and vested in the Corporation. The question whether his contract of employment as the principal officer of the business, defined as the controlled business both under the Ordinance and the Act, continued or not after January 19, 1956 would be a question in relation to the liability pertaining to such controlled business and was therefore within the scope of R. 12A. But the question as to whether he became an employee of the Corporation under S. 11 (1) on and from January 1, 1956, though dependent on the answer as to whether his contract stood terminated under cl. 3 (2) of the Ordinance, would not fall within R. 12A and was not therefore triable by the Tribunal. The High Court, therefore, was right in splitting the appellants claim into two, one triable by the tribunal and the other not, and retaining with it that part of the suit which did not fall within the scope of R. 12A with liberty to the parties to raise later on the question whether that part was triable by the Court or by the Central Government under S. 11 (3) of the Act.
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Anil Kumar Sawhney Vs. Gulshan Rai | question as to when a post-dated cheque can be considered to have been drawn for the purpose of section 138 of the Act cannot be dealt with independently of the right to present the same. In relation to the drawer and drawee, a post-dated cheque becomes operative only from the date of the cheque when alone the same is intended to be honoured. A post-dated cheque for the purpose of clause (a) of the proviso to section 138 of the Act has to be considered to have been drawn on the date it bears and in this case, since the cheque was presented within six months of the date of the cheque, it cannot be said that the condition in the said proviso is not satisfied. In view of the above, with respect, we are unable to agree with the view taken in Babu Xaviers case [1990] TLNJ (Crl) 121, since reported in referred to earlier." The Punjab and Haryana High Court in the impugned judgment followed the Madras High Court view and did not agree with the Division Bench of the Kerala High Court.We do not agree with the reasoning and the conclusions reached by the Madras High Court which have been followed by the learned single judge of the Punjab and Haryana High Court in the impugned judgment. Both the High Courts fell into patent error in holding that the provisions of section 138 of the Act are not applicable to post-dated cheques. The interpretation placed by the High Courts on section 138 of the Act is not only contrary to the plain language of the various provisions of the Act but is also contrary to the Objects and Reasons of the Amendment Act. The said interpretation, if accepted, would defeat the very purpose of inserting Chapter XVII in the Act.Sections 5 and 6 of the Act define " bill of exchange " and " cheque ". A "bill of exchange " is a negotiable instrument in writing containing an instruction to a third party to pay a stated sum of money at a designated future date or on demand. A " cheque ", on the other hand, is a bill of exchange drawn on a bank by the holder of an account payable on demand. Thus, a " cheque " under section 6 of the Act is also a bill of exchange, but it is drawn on a banker and is payable on demand. It is, thus, obvious that a bill of exchange even though drawn on a banker, if it is not payable on demand, it is not a cheque. A " post-dated cheque " is only a bill of exchange when it is written or drawn, it becomes a " cheque " when it is payable on demand. The post-dated cheque is not payable till the date which is shown on the face of the said document. It will only become cheque on the date shown on it and prior to that it remains a bill of exchange under section 5 of the Act. As a bill of exchange a post-dated cheque remains negotiable but it will not become a " cheque " till the date when it becomes " payable on demand ".It is clear from section 19 that a " cheque " is an instrument which is payable on demand. A post-dated cheque, which is not payable on demand till a particular date, is not a cheque in the eyes of law till the date it on which becomes payable on demand. An offence to be made out under the substantive provisions of section 138 of the Act it is mandatory that the cheque is presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. It is the cheque drawn which has to be presented to the bank within the periods specified therein. When a post-dated cheque is written or drawn it is only a bill of exchange and as such the provisions of section 138(a) are not applicable to the said instrument. The post-dated cheque becomes a cheque under the Act on the date which is written on the said cheque and the six-month period has to be reckoned for the purposes of section 138(a) from the said date. One of the main ingredients of the offence under section 138 of the Act is, the return of the cheque by the bank unpaid. Till the time the cheque is returned by the bank unpaid, no offence under section 138 is made out. A post-dated cheque cannot be presented before the bank and as such the question of its return would not arise. It is only when the post-dated cheque becomes a " cheque ", with effect from the date shown on the face of the said cheque, the provisions of section 138 come into play. The net result is that a post-dated cheque remains a bill of exchange till the date written on it. With effect from the date shown on the face of the said cheque it becomes a " cheque " under the Act and the provisions of section 138(a) would squarely be attracted. In the present case, the post-dated cheques were drawn in March, 1990, but they became " cheques " in the year 1991 on the dates shown therein. The period of six months, therefore, has to be reckoned from the dates mentioned on the face of the cheques.Even otherwise we agree with the reasoning adopted by the Division Bench of the Kerala High Court. Section 138 has to be construed with reference to the context. If the object of bringing section 138 of the Act on the statute has to be fulfilled then the only interpretation which can be given to clause (a) of the proviso to section 138 of the Act is that a post-dated cheque shall be deemed to have been drawn on the date it bears. | 1[ds]An offence to be made out under the substantive provisions of section 138 of the Act it is mandatory that the cheque is presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. It is the cheque drawn which has to be presented to the bank within the periods specified therein. When acheque is written or drawn it is only a bill of exchange and as such the provisions of section 138(a) are not applicable to the said instrument. Thecheque becomes a cheque under the Act on the date which is written on the said cheque and theperiod has to be reckoned for the purposes of section 138(a) from the said date. One of the main ingredients of the offence under section 138 of the Act is, the return of the cheque by the bank unpaid. Till the time the cheque is returned by the bank unpaid, no offence under section 138 is made out. Acheque cannot be presented before the bank and as such the question of its return would not arise. It is only when thecheque becomes a " cheque ", with effect from the date shown on the face of the said cheque, the provisions of section 138 come into play. The net result is that acheque remains a bill of exchange till the date written on it. With effect from the date shown on the face of the said cheque it becomes a " cheque " under the Act and the provisions of section 138(a) would squarely be attracted. In the present case, thecheques were drawn in March, 1990, but they became " cheques " in the year 1991 on the dates shown therein. The period of six months, therefore, has to be reckoned from the dates mentioned on the face of the cheques.Even otherwise we agree with the reasoning adopted by the Division Bench of the Kerala High Court. Section 138 has to be construed with reference to the context. If the object of bringing section 138 of the Act on the statute has to be fulfilled then the only interpretation which can be given to clause (a) of the proviso to section 138 of the Act is that acheque shall be deemed to have been drawn on the date itfacts are more or less undisputed. Out of several cheques issuedin March, 1990, under the deed of compromise between the parties, two of the cheques were dated February 15, 1991, one dated April 15, 1991, and the fourth dated May 15, 1991. The dispute in the present appeals is as to what is the date on which a cheque is stated to have been drawn. In other words, what is the date from which the period of six months as contemplatedunder section 138(a) of the Act is to bedates written on those cheques, which were, are not the dates when the cheques were drawn. According to the respondent, since the cheques were drawn in March, 1990, and those were presented before the bankers in the year 1991, the cheques had been presented to the bank beyond the period of six months from the date on which those were drawn and as such no offence was made out under section 138(a) of the Act. Following the judgment of a learned single judge of the Madras High Court in Babu Xavier v. Lalchand Munoth, the High Court quashed the criminal complaints against the respondent.ThePunjab and Haryana High Court in the impugned judgment followed the Madras High Court view and did not agree with the Division Bench of the Kerala High Court.We do not agree with the reasoning and the conclusions reached by the Madras High Court which have been followed by the learned single judge of the Punjab and Haryana High Court in the impugned judgment. Both the High Courts fell into patent error in holding that the provisions of section 138 of the Act are not applicable tocheques. The interpretation placed by the High Courts on section 138 of the Act is not only contrary to the plain language of the various provisions of the Act but is also contrary to the Objects and Reasons of the Amendment Act. The said interpretation, if accepted, would defeat the very purpose of inserting Chapter XVII in the Act.Sections 5 and 6 of the Act define " bill of exchange " and " cheque ". A "bill of exchange " is a negotiable instrument in writing containing an instruction to a third party to pay a stated sum of money at a designated future date or on demand. A " cheque ", on the other hand, is a bill of exchange drawn on a bank by the holder of an account payable on demand. Thus, a " cheque " under section 6 of the Act is also a bill of exchange, but it is drawn on a banker and is payable on demand. It is, thus, obvious that a bill of exchange even though drawn on a banker, if it is not payable on demand, it is not a cheque. A "cheque " is only a bill of exchange when it is written or drawn, it becomes a " cheque " when it is payable on demand. Thecheque is not payable till the date which is shown on the face of the said document. It will only become cheque on the date shown on it and prior to that it remains a bill of exchange under section 5 of the Act. As a bill of exchange acheque remains negotiable but it will not become a " cheque " till the date when it becomes " payable on demand ".It is clear from section 19 that a " cheque " is an instrument which is payable on demand. Acheque, which is not payable on demand till a particular date, is not a cheque in the eyes of law till the date it on which becomes payable onoffence to be made out under the substantive provisions of section 138 of the Act it is mandatory that the cheque is presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. It is the cheque drawn which has to be presented to the bank within the periods specified therein. When acheque is written or drawn it is only a bill of exchange and as such the provisions of section 138(a) are not applicable to the said instrument. Thecheque becomes a cheque under the Act on the date which is written on the said cheque and thed has to be reckoned for the purposes of section 138(a) from the said date. One of the main ingredients of the offence under section 138 of the Act is, the return of the cheque by the bank unpaid. Till the time the cheque is returned by the bank unpaid, no offence under section 138 is made out. Ae cannot be presented before the bank and as such the question of its return would not arise. It is only when thecheque becomes a " cheque ", with effect from the date shown on the face of the said cheque, the provisions of section 138 come into play. The net result is that ae remains a bill of exchange till the date written on it. With effect from the date shown on the face of the said cheque it becomes a " cheque " under the Act and the provisions of section 138(a) would squarely be attracted. In the present case, thecheques were drawn in March, 1990, but they became " cheques " in the year 1991 on the dates shown therein. The period of six months, therefore, has to be reckoned from the dates mentioned on the face of the cheques.Even otherwise we agree with the reasoning adopted by the Division Bench of the Kerala High Court. Section 138 has to be construed with reference to the context. If the object of bringing section 138 of the Act on the statute has to be fulfilled then the only interpretation which can be given to clause (a) of the proviso to section 138 of the Act is that ae shall be deemed to have been drawn on the date it | 1 | 3,438 | 1,526 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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question as to when a post-dated cheque can be considered to have been drawn for the purpose of section 138 of the Act cannot be dealt with independently of the right to present the same. In relation to the drawer and drawee, a post-dated cheque becomes operative only from the date of the cheque when alone the same is intended to be honoured. A post-dated cheque for the purpose of clause (a) of the proviso to section 138 of the Act has to be considered to have been drawn on the date it bears and in this case, since the cheque was presented within six months of the date of the cheque, it cannot be said that the condition in the said proviso is not satisfied. In view of the above, with respect, we are unable to agree with the view taken in Babu Xaviers case [1990] TLNJ (Crl) 121, since reported in referred to earlier." The Punjab and Haryana High Court in the impugned judgment followed the Madras High Court view and did not agree with the Division Bench of the Kerala High Court.We do not agree with the reasoning and the conclusions reached by the Madras High Court which have been followed by the learned single judge of the Punjab and Haryana High Court in the impugned judgment. Both the High Courts fell into patent error in holding that the provisions of section 138 of the Act are not applicable to post-dated cheques. The interpretation placed by the High Courts on section 138 of the Act is not only contrary to the plain language of the various provisions of the Act but is also contrary to the Objects and Reasons of the Amendment Act. The said interpretation, if accepted, would defeat the very purpose of inserting Chapter XVII in the Act.Sections 5 and 6 of the Act define " bill of exchange " and " cheque ". A "bill of exchange " is a negotiable instrument in writing containing an instruction to a third party to pay a stated sum of money at a designated future date or on demand. A " cheque ", on the other hand, is a bill of exchange drawn on a bank by the holder of an account payable on demand. Thus, a " cheque " under section 6 of the Act is also a bill of exchange, but it is drawn on a banker and is payable on demand. It is, thus, obvious that a bill of exchange even though drawn on a banker, if it is not payable on demand, it is not a cheque. A " post-dated cheque " is only a bill of exchange when it is written or drawn, it becomes a " cheque " when it is payable on demand. The post-dated cheque is not payable till the date which is shown on the face of the said document. It will only become cheque on the date shown on it and prior to that it remains a bill of exchange under section 5 of the Act. As a bill of exchange a post-dated cheque remains negotiable but it will not become a " cheque " till the date when it becomes " payable on demand ".It is clear from section 19 that a " cheque " is an instrument which is payable on demand. A post-dated cheque, which is not payable on demand till a particular date, is not a cheque in the eyes of law till the date it on which becomes payable on demand. An offence to be made out under the substantive provisions of section 138 of the Act it is mandatory that the cheque is presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. It is the cheque drawn which has to be presented to the bank within the periods specified therein. When a post-dated cheque is written or drawn it is only a bill of exchange and as such the provisions of section 138(a) are not applicable to the said instrument. The post-dated cheque becomes a cheque under the Act on the date which is written on the said cheque and the six-month period has to be reckoned for the purposes of section 138(a) from the said date. One of the main ingredients of the offence under section 138 of the Act is, the return of the cheque by the bank unpaid. Till the time the cheque is returned by the bank unpaid, no offence under section 138 is made out. A post-dated cheque cannot be presented before the bank and as such the question of its return would not arise. It is only when the post-dated cheque becomes a " cheque ", with effect from the date shown on the face of the said cheque, the provisions of section 138 come into play. The net result is that a post-dated cheque remains a bill of exchange till the date written on it. With effect from the date shown on the face of the said cheque it becomes a " cheque " under the Act and the provisions of section 138(a) would squarely be attracted. In the present case, the post-dated cheques were drawn in March, 1990, but they became " cheques " in the year 1991 on the dates shown therein. The period of six months, therefore, has to be reckoned from the dates mentioned on the face of the cheques.Even otherwise we agree with the reasoning adopted by the Division Bench of the Kerala High Court. Section 138 has to be construed with reference to the context. If the object of bringing section 138 of the Act on the statute has to be fulfilled then the only interpretation which can be given to clause (a) of the proviso to section 138 of the Act is that a post-dated cheque shall be deemed to have been drawn on the date it bears.
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### Explanation:
less undisputed. Out of several cheques issuedin March, 1990, under the deed of compromise between the parties, two of the cheques were dated February 15, 1991, one dated April 15, 1991, and the fourth dated May 15, 1991. The dispute in the present appeals is as to what is the date on which a cheque is stated to have been drawn. In other words, what is the date from which the period of six months as contemplatedunder section 138(a) of the Act is to bedates written on those cheques, which were, are not the dates when the cheques were drawn. According to the respondent, since the cheques were drawn in March, 1990, and those were presented before the bankers in the year 1991, the cheques had been presented to the bank beyond the period of six months from the date on which those were drawn and as such no offence was made out under section 138(a) of the Act. Following the judgment of a learned single judge of the Madras High Court in Babu Xavier v. Lalchand Munoth, the High Court quashed the criminal complaints against the respondent.ThePunjab and Haryana High Court in the impugned judgment followed the Madras High Court view and did not agree with the Division Bench of the Kerala High Court.We do not agree with the reasoning and the conclusions reached by the Madras High Court which have been followed by the learned single judge of the Punjab and Haryana High Court in the impugned judgment. Both the High Courts fell into patent error in holding that the provisions of section 138 of the Act are not applicable tocheques. The interpretation placed by the High Courts on section 138 of the Act is not only contrary to the plain language of the various provisions of the Act but is also contrary to the Objects and Reasons of the Amendment Act. The said interpretation, if accepted, would defeat the very purpose of inserting Chapter XVII in the Act.Sections 5 and 6 of the Act define " bill of exchange " and " cheque ". A "bill of exchange " is a negotiable instrument in writing containing an instruction to a third party to pay a stated sum of money at a designated future date or on demand. A " cheque ", on the other hand, is a bill of exchange drawn on a bank by the holder of an account payable on demand. Thus, a " cheque " under section 6 of the Act is also a bill of exchange, but it is drawn on a banker and is payable on demand. It is, thus, obvious that a bill of exchange even though drawn on a banker, if it is not payable on demand, it is not a cheque. A "cheque " is only a bill of exchange when it is written or drawn, it becomes a " cheque " when it is payable on demand. Thecheque is not payable till the date which is shown on the face of the said document. It will only become cheque on the date shown on it and prior to that it remains a bill of exchange under section 5 of the Act. As a bill of exchange acheque remains negotiable but it will not become a " cheque " till the date when it becomes " payable on demand ".It is clear from section 19 that a " cheque " is an instrument which is payable on demand. Acheque, which is not payable on demand till a particular date, is not a cheque in the eyes of law till the date it on which becomes payable onoffence to be made out under the substantive provisions of section 138 of the Act it is mandatory that the cheque is presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. It is the cheque drawn which has to be presented to the bank within the periods specified therein. When acheque is written or drawn it is only a bill of exchange and as such the provisions of section 138(a) are not applicable to the said instrument. Thecheque becomes a cheque under the Act on the date which is written on the said cheque and thed has to be reckoned for the purposes of section 138(a) from the said date. One of the main ingredients of the offence under section 138 of the Act is, the return of the cheque by the bank unpaid. Till the time the cheque is returned by the bank unpaid, no offence under section 138 is made out. Ae cannot be presented before the bank and as such the question of its return would not arise. It is only when thecheque becomes a " cheque ", with effect from the date shown on the face of the said cheque, the provisions of section 138 come into play. The net result is that ae remains a bill of exchange till the date written on it. With effect from the date shown on the face of the said cheque it becomes a " cheque " under the Act and the provisions of section 138(a) would squarely be attracted. In the present case, thecheques were drawn in March, 1990, but they became " cheques " in the year 1991 on the dates shown therein. The period of six months, therefore, has to be reckoned from the dates mentioned on the face of the cheques.Even otherwise we agree with the reasoning adopted by the Division Bench of the Kerala High Court. Section 138 has to be construed with reference to the context. If the object of bringing section 138 of the Act on the statute has to be fulfilled then the only interpretation which can be given to clause (a) of the proviso to section 138 of the Act is that ae shall be deemed to have been drawn on the date it
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NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY Vs. RAVINDRA KUMAR SINGHVI (DEAD) THR. LRS | that when in 1988, the plaintiff had sworn the affidavit, the lease deed dated 31.1.1983 already stood executed in respect of Sector 15A plot. Since the lease was executed, the wife of the plaintif applied for permission to transfer which was granted and transfer deed was executed on 25.10.1990. The permission was granted by the appellant without having knowledge of the fact that the husband of the allottee has already been allotted a separate plot. Once an affidavit has been filed which is on the face of it false to the knowledge of the executants, no benefit can be claimed on the ground that delivery of possession was given. 17. In M. Veerabhadra Rao Vs. Tek Chand 1984 (Supp) SCC 571 , this Court was considering an affidavit attested by an Advocate in terms of Section 3(2) of the Oaths Act, 1969. The conduct of appellant to attest an affidavit without oath and the attestation on the representation of the respondent that it bears his signatures, came up for consideration. In these circumstances, this Court held as under: 17. The expression affidavit has been commonly understood to mean a sworn statement in writing made especially under oath or on affirmation before an authorised Magistrate or officer. Affidavit has been defined in sub-clause (3) of Section 3 of the General Clauses Act, 1897 to include affirmation and declaration in the case of person by law allowed to affirm or declare instead of swearing. The essential ingredients of an affidavit are that the statements or declarations are made by the deponent relevant to the subject matter and in order to add sanctity to it, he swears or affirms the truth of the statements made in the presence of a person who in law is authorised either to administer oath or to accept the affirmation…… 18. Therefore, affidavits filed were not mere sheet of paper but a solemn statement made before a person authorized to administer oath or to accept affirmation. The plaintiff had breached such solemn statement made on oath. 19. The terms and conditions of allotment conveyed to the plaintiff on 1.12.1988 have a specific clause that if allotment is obtained by any misrepresentation or misstatement or fraud, the lease may be cancelled and the possession of the plot and the building thereon may be taken by the Authority. Therefore, cancellation of allotment of plot obtained after filing false affidavit is a legitimate ground of cancellation of lease. Fraud vitiates all actions as laid down by this Court in S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. & Ors. (1994) 1 SCC 1 wherein it was held as under: 5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence. The principle of finality of litigation cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, taxevaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whos case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. 20. The argument that the lease was required to be determined by the Chief Executive Officer is not tenable. The determination of lease by the Chief Executive Officer would arise if in case there was any violation of the terms of lease. If the condition precedent for grant of lease itself was fraudulent, the cancellation of lease was not required to be preceeded by permission of the Chief Executive Officer. Still further, the Chief Executive Officer has granted permission on 13.9.1998, though the cancellation order was passed on 18.10.1996. Thus, it is a case of irregularity at best which stands removed with the permission of the Chief Executive Officer. The argument that if the statute prescribes a power to do a certain thing in a certain way, such thing must be done in that way and other modes of performance are necessarily forbidden is not applicable in the present case. Firstly, for the reason that admittedly, false affidavits were filed by the plaintiff as well as by his wife. The filing of a false affidavit disentitles the plaintiff for any equitable relief. Secondly, any irregularity in the process of cancellation stands cured with Chief Executive Officer granting permission on 13.9.1998. 21. The judgment in ITC Limited as relied upon by the respondent is on altogether different facts. In that case, the allotment made in favour of ITC Limited was subject matter of challenge in Public Interest Litigation in writ petitions filed before the Allahabad High Court. The issue was in respect of cancellation of lease on account of violation of the terms, not based upon fraud in obtaining the lease. 22. The judgments of this Court in Teri Oat Estates and Hari Om Enterprises are also on different facts wherein the Doctrine of Proportionality was applied. 23. The fact is that the second plot allotted to the plaintiff had been allotted against the express terms of allotment. Therefore, there is neither equity nor any law in favor of the plaintiff. A person who misleads the Authority in obtaining allotment of a plot is not entitled to any relief. | 1[ds]15. It is an admitted fact that the wife of the plaintiff was allotted Sector 15A plot on 10.3.1981. The wife sworn an affidavit on 4.3.1983 that neither she nor her spouse owned any other plot in Noida. It was on 6.10.1981 that the plaintiff was informed about allotment of residential plot measuring 450 sq. yards in Sector 30. The allotment was said to be subject to terms and conditions as enclosed. The relevant extract from such terms and conditions have been reproduced above. Such terms clearly show that a person himself owning, or in case of his spouse or dependent children owning a plot within the Municipal Corporation of Delhi or New Delhi or Noida complex, will not be eligible for allotment of a plot in Noida. The affidavit of the wife of the plaintiff was false as the plot measuring 450 sq. yards stood allotted to the plaintiff on 6.10.1981. Therefore, on the date the wife of the plaintiff had sworn the affidavit, the Sector 30 plot was already allotted to the plaintiff. The argument that plot might have been allotted but the possession was not with the wife of the plaintiff is incorrect. The affidavit was to the effect that she has not been allotted any plot either in her name or in the name of her husband. The affidavit was not that the plot has been allotted but possession has not been delivered.16. On the other hand, the plaintiff had sworn an affidavit, sent to the appellant with his letter dated 1.12.1988 that he, his spouse and dependent children do not own in full or in part on leasehold or freehold basis any residential plot. Even this affidavit is in respect of allotment of a plot not in respect of delivery of possession. It may be stated that when in 1988, the plaintiff had sworn the affidavit, the lease deed dated 31.1.1983 already stood executed in respect of Sector 15A plot. Since the lease was executed, the wife of the plaintif applied for permission to transfer which was granted and transfer deed was executed on 25.10.1990. The permission was granted by the appellant without having knowledge of the fact that the husband of the allottee has already been allotted a separate plot. Once an affidavit has been filed which is on the face of it false to the knowledge of the executants, no benefit can be claimed on the ground that delivery of possession was given.17. In M. Veerabhadra Rao Vs. Tek Chand 1984 (Supp) SCC 571 , this Court was considering an affidavit attested by an Advocate in terms of Section 3(2) of the Oaths Act, 1969. The conduct of appellant to attest an affidavit without oath and the attestation on the representation of the respondent that it bears his signatures, came up for consideration. In these circumstances, this Court held as under:17. The expression affidavit has been commonly understood to mean a sworn statement in writing made especially under oath or on affirmation before an authorised Magistrate or officer. Affidavit has been defined in sub-clause (3) of Section 3 of the General Clauses Act, 1897 to include affirmation and declaration in the case of person by law allowed to affirm or declare instead of swearing. The essential ingredients of an affidavit are that the statements or declarations are made by the deponent relevant to the subject matter and in order to add sanctity to it, he swears or affirms the truth of the statements made in the presence of a person who in law is authorised either to administer oath or to accept the affirmation……18. Therefore, affidavits filed were not mere sheet of paper but a solemn statement made before a person authorized to administer oath or to accept affirmation. The plaintiff had breached such solemn statement made on oath.19. The terms and conditions of allotment conveyed to the plaintiff on 1.12.1988 have a specific clause that if allotment is obtained by any misrepresentation or misstatement or fraud, the lease may be cancelled and the possession of the plot and the building thereon may be taken by the Authority. Therefore, cancellation of allotment of plot obtained after filing false affidavit is a legitimate ground of cancellation of lease. Fraud vitiates all actions as laid down by this Court in S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. & Ors. (1994) 1 SCC 1 wherein it was held as under:5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence. The principle of finality of litigation cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, taxevaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whos case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.20. The argument that the lease was required to be determined by the Chief Executive Officer is not tenable. The determination of lease by the Chief Executive Officer would arise if in case there was any violation of the terms of lease. If the condition precedent for grant of lease itself was fraudulent, the cancellation of lease was not required to be preceeded by permission of the Chief Executive Officer. Still further, the Chief Executive Officer has granted permission on 13.9.1998, though the cancellation order was passed on 18.10.1996. Thus, it is a case of irregularity at best which stands removed with the permission of the Chief Executive Officer. The argument that if the statute prescribes a power to do a certain thing in a certain way, such thing must be done in that way and other modes of performance are necessarily forbidden is not applicable in the present case. Firstly, for the reason that admittedly, false affidavits were filed by the plaintiff as well as by his wife. The filing of a false affidavit disentitles the plaintiff for any equitable relief. Secondly, any irregularity in the process of cancellation stands cured with Chief Executive Officer granting permission on 13.9.1998.21. The judgment in ITC Limited as relied upon by the respondent is on altogether different facts. In that case, the allotment made in favour of ITC Limited was subject matter of challenge in Public Interest Litigation in writ petitions filed before the Allahabad High Court. The issue was in respect of cancellation of lease on account of violation of the terms, not based upon fraud in obtaining the lease.22. The judgments of this Court in Teri Oat Estates and Hari Om Enterprises are also on different facts wherein the Doctrine of Proportionality was applied.23. The fact is that the second plot allotted to the plaintiff had been allotted against the express terms of allotment. Therefore, there is neither equity nor any law in favor of the plaintiff. A person who misleads the Authority in obtaining allotment of a plot is not entitled to any relief. | 1 | 3,183 | 1,413 | ### 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:
that when in 1988, the plaintiff had sworn the affidavit, the lease deed dated 31.1.1983 already stood executed in respect of Sector 15A plot. Since the lease was executed, the wife of the plaintif applied for permission to transfer which was granted and transfer deed was executed on 25.10.1990. The permission was granted by the appellant without having knowledge of the fact that the husband of the allottee has already been allotted a separate plot. Once an affidavit has been filed which is on the face of it false to the knowledge of the executants, no benefit can be claimed on the ground that delivery of possession was given. 17. In M. Veerabhadra Rao Vs. Tek Chand 1984 (Supp) SCC 571 , this Court was considering an affidavit attested by an Advocate in terms of Section 3(2) of the Oaths Act, 1969. The conduct of appellant to attest an affidavit without oath and the attestation on the representation of the respondent that it bears his signatures, came up for consideration. In these circumstances, this Court held as under: 17. The expression affidavit has been commonly understood to mean a sworn statement in writing made especially under oath or on affirmation before an authorised Magistrate or officer. Affidavit has been defined in sub-clause (3) of Section 3 of the General Clauses Act, 1897 to include affirmation and declaration in the case of person by law allowed to affirm or declare instead of swearing. The essential ingredients of an affidavit are that the statements or declarations are made by the deponent relevant to the subject matter and in order to add sanctity to it, he swears or affirms the truth of the statements made in the presence of a person who in law is authorised either to administer oath or to accept the affirmation…… 18. Therefore, affidavits filed were not mere sheet of paper but a solemn statement made before a person authorized to administer oath or to accept affirmation. The plaintiff had breached such solemn statement made on oath. 19. The terms and conditions of allotment conveyed to the plaintiff on 1.12.1988 have a specific clause that if allotment is obtained by any misrepresentation or misstatement or fraud, the lease may be cancelled and the possession of the plot and the building thereon may be taken by the Authority. Therefore, cancellation of allotment of plot obtained after filing false affidavit is a legitimate ground of cancellation of lease. Fraud vitiates all actions as laid down by this Court in S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. & Ors. (1994) 1 SCC 1 wherein it was held as under: 5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence. The principle of finality of litigation cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, taxevaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whos case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. 20. The argument that the lease was required to be determined by the Chief Executive Officer is not tenable. The determination of lease by the Chief Executive Officer would arise if in case there was any violation of the terms of lease. If the condition precedent for grant of lease itself was fraudulent, the cancellation of lease was not required to be preceeded by permission of the Chief Executive Officer. Still further, the Chief Executive Officer has granted permission on 13.9.1998, though the cancellation order was passed on 18.10.1996. Thus, it is a case of irregularity at best which stands removed with the permission of the Chief Executive Officer. The argument that if the statute prescribes a power to do a certain thing in a certain way, such thing must be done in that way and other modes of performance are necessarily forbidden is not applicable in the present case. Firstly, for the reason that admittedly, false affidavits were filed by the plaintiff as well as by his wife. The filing of a false affidavit disentitles the plaintiff for any equitable relief. Secondly, any irregularity in the process of cancellation stands cured with Chief Executive Officer granting permission on 13.9.1998. 21. The judgment in ITC Limited as relied upon by the respondent is on altogether different facts. In that case, the allotment made in favour of ITC Limited was subject matter of challenge in Public Interest Litigation in writ petitions filed before the Allahabad High Court. The issue was in respect of cancellation of lease on account of violation of the terms, not based upon fraud in obtaining the lease. 22. The judgments of this Court in Teri Oat Estates and Hari Om Enterprises are also on different facts wherein the Doctrine of Proportionality was applied. 23. The fact is that the second plot allotted to the plaintiff had been allotted against the express terms of allotment. Therefore, there is neither equity nor any law in favor of the plaintiff. A person who misleads the Authority in obtaining allotment of a plot is not entitled to any relief.
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### Explanation:
of delivery of possession. It may be stated that when in 1988, the plaintiff had sworn the affidavit, the lease deed dated 31.1.1983 already stood executed in respect of Sector 15A plot. Since the lease was executed, the wife of the plaintif applied for permission to transfer which was granted and transfer deed was executed on 25.10.1990. The permission was granted by the appellant without having knowledge of the fact that the husband of the allottee has already been allotted a separate plot. Once an affidavit has been filed which is on the face of it false to the knowledge of the executants, no benefit can be claimed on the ground that delivery of possession was given.17. In M. Veerabhadra Rao Vs. Tek Chand 1984 (Supp) SCC 571 , this Court was considering an affidavit attested by an Advocate in terms of Section 3(2) of the Oaths Act, 1969. The conduct of appellant to attest an affidavit without oath and the attestation on the representation of the respondent that it bears his signatures, came up for consideration. In these circumstances, this Court held as under:17. The expression affidavit has been commonly understood to mean a sworn statement in writing made especially under oath or on affirmation before an authorised Magistrate or officer. Affidavit has been defined in sub-clause (3) of Section 3 of the General Clauses Act, 1897 to include affirmation and declaration in the case of person by law allowed to affirm or declare instead of swearing. The essential ingredients of an affidavit are that the statements or declarations are made by the deponent relevant to the subject matter and in order to add sanctity to it, he swears or affirms the truth of the statements made in the presence of a person who in law is authorised either to administer oath or to accept the affirmation……18. Therefore, affidavits filed were not mere sheet of paper but a solemn statement made before a person authorized to administer oath or to accept affirmation. The plaintiff had breached such solemn statement made on oath.19. The terms and conditions of allotment conveyed to the plaintiff on 1.12.1988 have a specific clause that if allotment is obtained by any misrepresentation or misstatement or fraud, the lease may be cancelled and the possession of the plot and the building thereon may be taken by the Authority. Therefore, cancellation of allotment of plot obtained after filing false affidavit is a legitimate ground of cancellation of lease. Fraud vitiates all actions as laid down by this Court in S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. & Ors. (1994) 1 SCC 1 wherein it was held as under:5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence. The principle of finality of litigation cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, taxevaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whos case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.20. The argument that the lease was required to be determined by the Chief Executive Officer is not tenable. The determination of lease by the Chief Executive Officer would arise if in case there was any violation of the terms of lease. If the condition precedent for grant of lease itself was fraudulent, the cancellation of lease was not required to be preceeded by permission of the Chief Executive Officer. Still further, the Chief Executive Officer has granted permission on 13.9.1998, though the cancellation order was passed on 18.10.1996. Thus, it is a case of irregularity at best which stands removed with the permission of the Chief Executive Officer. The argument that if the statute prescribes a power to do a certain thing in a certain way, such thing must be done in that way and other modes of performance are necessarily forbidden is not applicable in the present case. Firstly, for the reason that admittedly, false affidavits were filed by the plaintiff as well as by his wife. The filing of a false affidavit disentitles the plaintiff for any equitable relief. Secondly, any irregularity in the process of cancellation stands cured with Chief Executive Officer granting permission on 13.9.1998.21. The judgment in ITC Limited as relied upon by the respondent is on altogether different facts. In that case, the allotment made in favour of ITC Limited was subject matter of challenge in Public Interest Litigation in writ petitions filed before the Allahabad High Court. The issue was in respect of cancellation of lease on account of violation of the terms, not based upon fraud in obtaining the lease.22. The judgments of this Court in Teri Oat Estates and Hari Om Enterprises are also on different facts wherein the Doctrine of Proportionality was applied.23. The fact is that the second plot allotted to the plaintiff had been allotted against the express terms of allotment. Therefore, there is neither equity nor any law in favor of the plaintiff. A person who misleads the Authority in obtaining allotment of a plot is not entitled to any relief.
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Bidi, Bidi Leaves Vs. The State Of Bombay | help to validate the impugned clauses in the notification.*Craies on Statute Law, p. 239.**Maxwell on Interpretation of Statutes, 10th ed., p. 361.21. The respondent strenuously contends that clauses I and 2. of the notification which have prescribed the minimum rates of wages per 1000 bidis would become ineffective unless cls. 3 to 7 supplement them. The argument is that by improper or dishonest exercise of the power conferred on the employer by the contract of employment to discard chhat bidis the employees would be cheated of their legitimate due wages under cls. 1 and 2 and so, in order to make the provisions of cls. 1 and 2 effective some subsidiary provisions had to be made for settling the dispute between the employer and his workmen in regard to chhat bidis. As we have already observed, the grievance made by the employees on the score of improper rejection of bidis may in many cases be well-founed; but the seriousness of the said grievance and the urgent necessity to meet it would hardly be a proper basis for invoking the doctrine of implied power where the provisions of the statute are quite clearly against the assumption of such implied power. The definition of the term "wages" postulates the binding character of the other norms of the contract and brings within the purview of the Act only one term and that relates to wages and no other. That being so, it is difficult to hold that by implication the very basic concept of the term "wages can be ignored and the other terms of the contract can be dealt with by the notification issued under the relevant provisions of the Act. When the said other terms of the contract are outside the scope of the Act altogether how could they be affected by the notification under the Act under the doctrine of implied powers?22. Besides, in this connection it is also necessary to bear in mind the provisions of Ss. 20-21 of the Act. These two sections provide for the settlement of claims made by employees in regard to the payment of minimum rates of wages. If, for instance, good bidis are rejected by the employer as chhat bidis improperly and without justification the employee can make a claim in that behalf and the same would be tried under Ss. 20-21.Therefore the Act has made a specific provision for the enforcement and implementation of the minimum rates of wages prescribed by notifications. The present notification purports to ignore the said provisions and sets up a machinery to settle the said disputes. Clauses 1 and 2 prescribed the revised minimum rates of wages. It, in the matter of payment of the said wages, any disputes arise they must be left for adjudication by the authority prescribed by S. 20. That is another reason why the doctrine of implied powers cannot be invoked in support of the validity of the impugned clauses in the notification.23. There is yet another consideration which is relevant in dealing with the question about the implied powers. The doctrine of implied power can be invoked where without the said power the material provision of the Act would become impossible of enforcement. In the present case all that S. 5 requires is the fixation of minimum rates of wages, and that has been done by the notification by cls. 1 and 2. What the subsidiary clauses purport to do is to make the enforcement of the fixed rate effective by providing for a machinery to deal with the possible disputes arising between the parties as a result of the practice of discarding chhat bidis. In other words, cls. 1 and 2 fix the minimum rates of wages and thus S. 5 has been complied with and enforced. The remaining clauses purport to make the implementation of the provisions of cls. 1 and 2 effective. That is very different from giving effect to S. 5 itself. The enforcement of the notification is clearly not the same thing as exercising the power of fixing or revising the minimum rates of wages under S. 5. A power may be implied, if necessary, in discharging the duty imposed upon the appropriate Government or in exercising the power conferred on the State Government in the matter of fixing or revising the minimum rates of wages; but surely no power can be implied for making effective the implementation of the notification issued under the said power or in the discharge of the said duty. The purpose of the Act cannot be said to have failed after the minimum rates of wages are prescribed and notified. What may turn out to be ineffective is the provision for payment of the said wages by reason of the rejection of good bidis; but that is a matter of an industrial dispute which has to be adjudicated upon under Ss. 20 and 21 or under other provisions of the law. It is true that a large section of the workers in the bidi trade is illiterate, uneducated and unorganised; and there can be no doubt that their grievance on the ground of improper rejection of the bidis deserves to be redressed but, in our opinion, the procedure adopted by the respondent in redressing the said grievance is outside the scope of the Act, and therefore beyond the powers conferred on it by S. 5. The proper remedy in such a case may be to make a comprehensive reference of the dispute to the competent industrial tribunal and invite the tribunal to make a proper award in that behalf. We are, therefore, inclined to take the view that cls. 3 to 7 which form an integral scheme are outside the purview of the powers conferred on the respondent by S. 5 of the Act and must therefore be declared to be ultra vires. It is common ground that these clauses are severable from cls. 1 and 2 and that their invalidity does not affect the validity of the said two clauses. | 1[ds]Thus, there is no doubt that under the terms of the contract the workers are entitled to receive payment only for the bidis accepted by the employers and not for those which are rejected. It is also not disputed that the bidis which are rejected by the employer, otherwise known as "chhats" are retained by the employer though he refuses to take them into account in the matter of payment to the workers on the ground that they do not come up to the standard of skill or quality prescribed by the contract.It is well settled that industrial adjudication under the provisions of the Industrial Disputes Act 14 of 1947 is given wide powers and jurisdiction to make appropriate awards in determining industrial disputes brought before it. An award made in an industrial adjudication may impose new obligations on the employer in the interest of social justice and with a view to secure peace and harmony between the employer and his workmen and full co-operation between them, such an award may even alter the terms of employment if it is thought fit and necessary to do so. In deciding industrial disputes the jurisdiction of the tribunal is not confined to the administration of justice in accordance with the law of contract. As Mukherjea, J., as he then was, has observed in Bharat Bank Ltd., Delhi v. Employees of Bharat Bank Ltd. Delhi, 1950 SCR 459 at p. 513 : (AIR 1950 SC 188 at. p. 209) the tribunal "can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations between them which it considers essential for keeping industrial peace". Since the decision of the Federal Court in Western India Automobile Association v. Industrial Tribunal, Bombay, AIR 1949 FC 111 :1949 FCR 321 it has been repeatedly held that the jurisdiction of industrial tribunals is much wider and can be reasonably exercised in deciding industrial disputes with the object of keeping industrial peace and progress (Vide: Rohtas Industries, Ltd. v. Brijnandan Pandey, 1956 SCR 800 : (S) AIR 1957 SC 1 ), Patna Electric supply Co. Ltd., Patna v. Patna Electric Supply Workers Union, 1959 Supp. (2) SCR 761: (AIR 1959 SC 1035 )). Indeed, during the last ten years and more industrial adjudication in this country has made so much progress in determining industrial disputes arising between industries of different kinds and their employees that the jurisdiction and authority of industrial tribunals to deal with such disputes with the object of ensuring social justice is no longer seriouslywould be the amount to which the employee is entitled if the other terms of the contract are performed ? That is the question which has to be asked in determining what the term "wages" means under S. 2(h). No doubt Ss. 3, 4 and 5 authorise the appropriate Government to fix the minimum rates of wages. In other words, if the wages fixed by a contract which is either express or implied are found to below authority is conferred on the appropriate Government to increase them so as to bring them to the level of what the said. Government regards as the minimum wages in the particular scheduled employment in the particular area concerned. This means that power is conferred on the appropriate Government to modify one term of the contract express or implied between the employer and the employee and that is a term which has reference to the payment of wages. If for a certain piece of work done by the employee the employer has agreed to pay him either expressly or by implication a certain amount of wages the appropriate Government can issue a notification and prescribe that for the said work done under the contract the employer must pay his employee a much higher rate of wages and the higher rate of wages thus prescribed would be deemed to be the minimum rate of wages between the parties.The significance of the definition contained in S. 2(h) lies in the fact that the rate of wages may be increased but no change can be made in the other terms of the contract. In other words, the Act operated on the wages and does not operate on the other terms of the contract between the employer and the employee. That is the basic approach which must be adopted in determining the scope and effect of the powers conferred on the appropriate Government by the relevant provisions of the statute authorising it to prescribe minimum rates of wages or to revise them. What the appropriate Government is authorised to do is to prescribe, fix or revise wages and wages are defined to be remuneration payable to the employees if the terms of the contract of employment, express or implied, were fulfilled. This definition runs, as it inevitably must, through the material provisions of the Act and its importance cannot therefore beother words, the doctrine of implied powers can be legitimately invoked when it is found that a duty has been imposed or a power conferred on an authority by a statute and it is further found that the duty cannot be discharged Or the power cannot be exercised at all unless some auxiliary or incidental power is assumed to exist. In such a case,, in the absence of an implied power the statute itself would become impossible of compliance. The impossibility in question must be of a general nature so that the performance of duty or the exercise of power is rendered impossible in all cases. It really means that the statutory provision would become a dead letter and cannot be enforced unless a subsidiary power is implied. This position in regard to the scope and effect of the doctrine of implied Powers is not seriously in dispute before us. The parties are at issue, however, on the question as to whether the doctrine of implied powers can help to validate the impugned clauses in the notification.Besides, in this connection it is also necessary to bear in mind the provisions of Ss. 20-21 of the Act. These two sections provide for the settlement of claims made by employees in regard to the payment of minimum rates of wages. If, for instance, good bidis are rejected by the employer as chhat bidis improperly and without justification the employee can make a claim in that behalf and the same would be tried under Ss. 20-21.Therefore the Act has made a specific provision for the enforcement and implementation of the minimum rates of wages prescribed by notifications. The present notification purports to ignore the said provisions and sets up a machinery to settle the said disputes. Clauses 1 and 2 prescribed the revised minimum rates of wages. It, in the matter of payment of the said wages, any disputes arise they must be left for adjudication by the authority prescribed by S. 20. That is another reason why the doctrine of implied powers cannot be invoked in support of the validity of the impugned clauses in theis true that a large section of the workers in the bidi trade is illiterate, uneducated and unorganised; and there can be no doubt that their grievance on the ground of improper rejection of the bidis deserves to be redressed but, in our opinion, the procedure adopted by the respondent in redressing the said grievance is outside the scope of the Act, and therefore beyond the powers conferred on it by S. 5. The proper remedy in such a case may be to make a comprehensive reference of the dispute to the competent industrial tribunal and invite the tribunal to make a proper award in that behalf. We are, therefore, inclined to take the view that cls. 3 to 7 which form an integral scheme are outside the purview of the powers conferred on the respondent by S. 5 of the Act and must therefore be declared to be ultra vires. It is common ground that these clauses are severable from cls. 1 and 2 and that their invalidity does not affect the validity of the said two clauses. | 1 | 7,850 | 1,483 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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help to validate the impugned clauses in the notification.*Craies on Statute Law, p. 239.**Maxwell on Interpretation of Statutes, 10th ed., p. 361.21. The respondent strenuously contends that clauses I and 2. of the notification which have prescribed the minimum rates of wages per 1000 bidis would become ineffective unless cls. 3 to 7 supplement them. The argument is that by improper or dishonest exercise of the power conferred on the employer by the contract of employment to discard chhat bidis the employees would be cheated of their legitimate due wages under cls. 1 and 2 and so, in order to make the provisions of cls. 1 and 2 effective some subsidiary provisions had to be made for settling the dispute between the employer and his workmen in regard to chhat bidis. As we have already observed, the grievance made by the employees on the score of improper rejection of bidis may in many cases be well-founed; but the seriousness of the said grievance and the urgent necessity to meet it would hardly be a proper basis for invoking the doctrine of implied power where the provisions of the statute are quite clearly against the assumption of such implied power. The definition of the term "wages" postulates the binding character of the other norms of the contract and brings within the purview of the Act only one term and that relates to wages and no other. That being so, it is difficult to hold that by implication the very basic concept of the term "wages can be ignored and the other terms of the contract can be dealt with by the notification issued under the relevant provisions of the Act. When the said other terms of the contract are outside the scope of the Act altogether how could they be affected by the notification under the Act under the doctrine of implied powers?22. Besides, in this connection it is also necessary to bear in mind the provisions of Ss. 20-21 of the Act. These two sections provide for the settlement of claims made by employees in regard to the payment of minimum rates of wages. If, for instance, good bidis are rejected by the employer as chhat bidis improperly and without justification the employee can make a claim in that behalf and the same would be tried under Ss. 20-21.Therefore the Act has made a specific provision for the enforcement and implementation of the minimum rates of wages prescribed by notifications. The present notification purports to ignore the said provisions and sets up a machinery to settle the said disputes. Clauses 1 and 2 prescribed the revised minimum rates of wages. It, in the matter of payment of the said wages, any disputes arise they must be left for adjudication by the authority prescribed by S. 20. That is another reason why the doctrine of implied powers cannot be invoked in support of the validity of the impugned clauses in the notification.23. There is yet another consideration which is relevant in dealing with the question about the implied powers. The doctrine of implied power can be invoked where without the said power the material provision of the Act would become impossible of enforcement. In the present case all that S. 5 requires is the fixation of minimum rates of wages, and that has been done by the notification by cls. 1 and 2. What the subsidiary clauses purport to do is to make the enforcement of the fixed rate effective by providing for a machinery to deal with the possible disputes arising between the parties as a result of the practice of discarding chhat bidis. In other words, cls. 1 and 2 fix the minimum rates of wages and thus S. 5 has been complied with and enforced. The remaining clauses purport to make the implementation of the provisions of cls. 1 and 2 effective. That is very different from giving effect to S. 5 itself. The enforcement of the notification is clearly not the same thing as exercising the power of fixing or revising the minimum rates of wages under S. 5. A power may be implied, if necessary, in discharging the duty imposed upon the appropriate Government or in exercising the power conferred on the State Government in the matter of fixing or revising the minimum rates of wages; but surely no power can be implied for making effective the implementation of the notification issued under the said power or in the discharge of the said duty. The purpose of the Act cannot be said to have failed after the minimum rates of wages are prescribed and notified. What may turn out to be ineffective is the provision for payment of the said wages by reason of the rejection of good bidis; but that is a matter of an industrial dispute which has to be adjudicated upon under Ss. 20 and 21 or under other provisions of the law. It is true that a large section of the workers in the bidi trade is illiterate, uneducated and unorganised; and there can be no doubt that their grievance on the ground of improper rejection of the bidis deserves to be redressed but, in our opinion, the procedure adopted by the respondent in redressing the said grievance is outside the scope of the Act, and therefore beyond the powers conferred on it by S. 5. The proper remedy in such a case may be to make a comprehensive reference of the dispute to the competent industrial tribunal and invite the tribunal to make a proper award in that behalf. We are, therefore, inclined to take the view that cls. 3 to 7 which form an integral scheme are outside the purview of the powers conferred on the respondent by S. 5 of the Act and must therefore be declared to be ultra vires. It is common ground that these clauses are severable from cls. 1 and 2 and that their invalidity does not affect the validity of the said two clauses.
### Response:
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### Explanation:
Electric supply Co. Ltd., Patna v. Patna Electric Supply Workers Union, 1959 Supp. (2) SCR 761: (AIR 1959 SC 1035 )). Indeed, during the last ten years and more industrial adjudication in this country has made so much progress in determining industrial disputes arising between industries of different kinds and their employees that the jurisdiction and authority of industrial tribunals to deal with such disputes with the object of ensuring social justice is no longer seriouslywould be the amount to which the employee is entitled if the other terms of the contract are performed ? That is the question which has to be asked in determining what the term "wages" means under S. 2(h). No doubt Ss. 3, 4 and 5 authorise the appropriate Government to fix the minimum rates of wages. In other words, if the wages fixed by a contract which is either express or implied are found to below authority is conferred on the appropriate Government to increase them so as to bring them to the level of what the said. Government regards as the minimum wages in the particular scheduled employment in the particular area concerned. This means that power is conferred on the appropriate Government to modify one term of the contract express or implied between the employer and the employee and that is a term which has reference to the payment of wages. If for a certain piece of work done by the employee the employer has agreed to pay him either expressly or by implication a certain amount of wages the appropriate Government can issue a notification and prescribe that for the said work done under the contract the employer must pay his employee a much higher rate of wages and the higher rate of wages thus prescribed would be deemed to be the minimum rate of wages between the parties.The significance of the definition contained in S. 2(h) lies in the fact that the rate of wages may be increased but no change can be made in the other terms of the contract. In other words, the Act operated on the wages and does not operate on the other terms of the contract between the employer and the employee. That is the basic approach which must be adopted in determining the scope and effect of the powers conferred on the appropriate Government by the relevant provisions of the statute authorising it to prescribe minimum rates of wages or to revise them. What the appropriate Government is authorised to do is to prescribe, fix or revise wages and wages are defined to be remuneration payable to the employees if the terms of the contract of employment, express or implied, were fulfilled. This definition runs, as it inevitably must, through the material provisions of the Act and its importance cannot therefore beother words, the doctrine of implied powers can be legitimately invoked when it is found that a duty has been imposed or a power conferred on an authority by a statute and it is further found that the duty cannot be discharged Or the power cannot be exercised at all unless some auxiliary or incidental power is assumed to exist. In such a case,, in the absence of an implied power the statute itself would become impossible of compliance. The impossibility in question must be of a general nature so that the performance of duty or the exercise of power is rendered impossible in all cases. It really means that the statutory provision would become a dead letter and cannot be enforced unless a subsidiary power is implied. This position in regard to the scope and effect of the doctrine of implied Powers is not seriously in dispute before us. The parties are at issue, however, on the question as to whether the doctrine of implied powers can help to validate the impugned clauses in the notification.Besides, in this connection it is also necessary to bear in mind the provisions of Ss. 20-21 of the Act. These two sections provide for the settlement of claims made by employees in regard to the payment of minimum rates of wages. If, for instance, good bidis are rejected by the employer as chhat bidis improperly and without justification the employee can make a claim in that behalf and the same would be tried under Ss. 20-21.Therefore the Act has made a specific provision for the enforcement and implementation of the minimum rates of wages prescribed by notifications. The present notification purports to ignore the said provisions and sets up a machinery to settle the said disputes. Clauses 1 and 2 prescribed the revised minimum rates of wages. It, in the matter of payment of the said wages, any disputes arise they must be left for adjudication by the authority prescribed by S. 20. That is another reason why the doctrine of implied powers cannot be invoked in support of the validity of the impugned clauses in theis true that a large section of the workers in the bidi trade is illiterate, uneducated and unorganised; and there can be no doubt that their grievance on the ground of improper rejection of the bidis deserves to be redressed but, in our opinion, the procedure adopted by the respondent in redressing the said grievance is outside the scope of the Act, and therefore beyond the powers conferred on it by S. 5. The proper remedy in such a case may be to make a comprehensive reference of the dispute to the competent industrial tribunal and invite the tribunal to make a proper award in that behalf. We are, therefore, inclined to take the view that cls. 3 to 7 which form an integral scheme are outside the purview of the powers conferred on the respondent by S. 5 of the Act and must therefore be declared to be ultra vires. It is common ground that these clauses are severable from cls. 1 and 2 and that their invalidity does not affect the validity of the said two clauses.
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RAM CHANDRA SINGH Vs. RAJARAM | by the authority concerned. 8. It is also noticed that in the oral evidence, the appellant had stated that he had seen the photocopy of the driving licence of Shivgyani and was also satisfied about his driving skills, before employing him as the driver for driving the vehicle. In his cross-examination by the insurer, the appellant stated thus: ……I have not sold the vehicle. Driver Shiv Gyani was working with me from February 2012. He was permanent resident of District – Fatehpur. I never got verified the driving licence of Shiv Gyani. ……… This was not in my knowledge that he has no driving licence. This is incorrect to say that I provided my vehicle to him to drive despite I was aware that he has bogus licence. I am aware of this that licence is issued on the address one resides. ……………This is incorrect to say that I am giving false evidence to save my skin. 9. The Tribunal while answering issue No.3, however, made no attempt to analyse the pleadings and evidence on record to ascertain whether the appellant (owner) was aware of the fake driving licence possessed by the driver (respondent No.6). The Tribunal merely adverted to the investigation and verification report and found that the stated driving licence was invalid. The High Court also made no attempt to enquire into the relevant aspect, as has been consistently expounded by this Court and restated in PEPSU Road Transport Corporation (supra). Even in the case of Premkumari (supra), the Court after considering the judicial precedents opined as follows: It is clear from the above decision when the owner after verification satisfied himself that the driver has a valid licence and was driving the vehicle in question competently at the time of the accident there would be no breach of Section 149(2)(a)(ii), in that event, the insurance company would not then be absolved of liability. It is also clear that even in the case that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner was aware or noticed that the licence was fake and still permitted him to drive. 10. The decision in PEPSU Road Transport Corporation (supra) was relied upon by the appellant before the High Court which, however, distinguished the same by observing that it was on the facts of that case, where the Court opined that there was no evidence to prove that the driving licence produced by the authorities was fake. That approach, in our opinion, is manifestly wrong. Whereas, even in that case, the Court was called upon to deal with the similar question as is involved in this appeal. In that case, the Court first adverted to the decision in United India Insurance Co. Ltd. Vs. Lehru and Ors. , and then to the three-Judge Bench decision in National Insurance Co. Ltd. Vs. Swaran Singh & Ors. . Paragraphs 99-101 of Swaran Singh (supra) have been extracted, which read thus: 99. So far as the purported conflict in the judgments of Kamla and Lehru is concerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companies, but whether despite the same, the plea of default on the part of the owner has been established or not would be a question which will have to be determined in each case. 100. This Court, however, in Lehru must not be read to mean that an owner of a vehicle can under no circumstances have any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for consideration in each individual case. 101. The submission of Mr Salve that in Lehru case, this Court has, for all intent and purport, taken away the right of an insurer to raise a defence that the licence is fake does not appear to be correct. Such defence can certainly be raised but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver. The Court then went on to advert to a two-Judge Bench decision of this Court in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, before dealing with the facts of the case before it 11. Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Indubitably, the High Court noted that the counsel for the appellant did not dispute that the driving licence was found to be fake, but that concession by itself was not sufficient to absolve the insurer. 12. As aforementioned, in the present case, neither the Tribunal nor the High Court has bothered to analyse the pleadings and evidence adduced by the parties on the crucial matter. Be that as it may, in this appeal, the limited grievance of the appellant-owner of the vehicle is about unjustly absolving the insurer merely on the finding that the driving licence of the driver (respondent No.6) was fake. No other aspect has been raised by the appellant nor do we intend to analyse or consider the same. 13. We, therefore, deem it appropriate to relegate the parties before the High Court for fresh consideration of the appeal filed by the appellant (owner) only on the question of liability of the owner or of the insurer (respondent No.7) to pay the compensation amount. 14. We make it clear that the High Court shall not examine any other issue in the remand proceedings. For, the compensation amount, as determined and directed by the Tribunal, has already been made over to the claimants. | 1[ds]7. We have perused the entire pleadings and the evidence on record as also the judgments of the Tribunal and the High Court. It is noticed that the insurer had taken a specific plea in the written statement filed before the Tribunal, that the driving licence of the driver was not a valid licence. In the alternative, it was asserted that the owner of the vehicle must produce the driving licence so that it can be verified from the licencing authority. Additionally, the insurer placed on record an investigation report, verification report and photocopy of the driving licence to establish the fact that the driving licence relied upon by the owner and the driver was fake and not valid. For, it was authenticated that no such driving licence was issued by the authority concerned8. It is also noticed that in the oral evidence, the appellant had stated that he had seen the photocopy of the driving licence of Shivgyani and was also satisfied about his driving skills, before employing him as the driver for driving the vehicle. In hisn by the insurer, the appellant stated thus:……I have not sold the vehicle. Driver Shiv Gyani was working with me from February 2012. He was permanent resident of District – Fatehpur. I never got verified the driving licence of Shiv Gyani. ……… This was not in my knowledge that he has no driving licence. This is incorrect to say that I provided my vehicle to him to drive despite I was aware that he has bogus licence. I am aware of this that licence is issued on the address one resides. ……………This is incorrect to say that I am giving false evidence to save my skin9. The Tribunal while answering issue No.3, however, made no attempt to analyse the pleadings and evidence on record to ascertain whether the appellant (owner) was aware of the fake driving licence possessed by the driver (respondent No.6). The Tribunal merely adverted to the investigation and verification report and found that the stated driving licence was invalid. The High Court also made no attempt to enquire into the relevant aspect, as has been consistently expounded by this Court and restated in PEPSU Road Transport Corporation (supra). Even in the case of Premkumari (supra), the Court after considering the judicial precedents opined as follows:It is clear from the above decision when the owner after verification satisfied himself that the driver has a valid licence and was driving the vehicle in question competently at the time of the accident there would be no breach of Section 149(2)(a)(ii), in that event, the insurance company would not then be absolved of liability. It is also clear that even in the case that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner was aware or noticed that the licence was fake and still permitted him to drive10. The decision in PEPSU Road Transport Corporation (supra) was relied upon by the appellant before the High Court which, however, distinguished the same by observing that it was on the facts of that case, where the Court opined that there was no evidence to prove that the driving licence produced by the authorities was fake. That approach, in our opinion, is manifestly wrong. Whereas, even in that case, the Court was called upon to deal with the similar question as is involved in this appeal. In that case, the Court first adverted to the decision in United India Insurance Co. Ltd. Vs. Lehru and Ors., and then to thee Bench decision in National Insurance Co. Ltd. Vs. Swaran Singh &1 of Swaran Singh (supra) have been extracted, which read thus:99. So far as the purported conflict in the judgments of Kamla and Lehru is concerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companies, but whether despite the same, the plea of default on the part of the owner has been established or not would be a question which will have to be determined in each case100. This Court, however, in Lehru must not be read to mean that an owner of a vehicle can under no circumstances have any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for consideration in each individual case101. The submission of Mr Salve that in Lehru case, this Court has, for all intent and purport, taken away the right of an insurer to raise a defence that the licence is fake does not appear to be correct. Such defence can certainly be raised but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driverThe Court then went on to advert to ae Bench decision of this Court in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut,before dealing with the facts of the case before it11. Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Indubitably, the High Court noted that the counsel for the appellant did not dispute that the driving licence was found to be fake, but that concession by itself was not sufficient to absolve the insurer12. As aforementioned, in the present case, neither the Tribunal nor the High Court has bothered to analyse the pleadings and evidence adduced by the parties on the crucial matter. Be that as it may, in this appeal, the limited grievance of ther of the vehicle is about unjustly absolving the insurer merely on the finding that the driving licence of the driver (respondent No.6) was fake. No other aspect has been raised by the appellant nor do we intend to analyse or consider the same13. We, therefore, deem it appropriate to relegate the parties before the High Court for fresh consideration of the appeal filed by the appellant (owner) only on the question of liability of the owner or of the insurer (respondent No.7) to pay the compensation amount14. We make it clear that the High Court shall not examine any other issue in the remand proceedings. For, the compensation amount, as determined and directed by the Tribunal, has already been made over to the claimants. | 1 | 1,858 | 1,237 | ### 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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by the authority concerned. 8. It is also noticed that in the oral evidence, the appellant had stated that he had seen the photocopy of the driving licence of Shivgyani and was also satisfied about his driving skills, before employing him as the driver for driving the vehicle. In his cross-examination by the insurer, the appellant stated thus: ……I have not sold the vehicle. Driver Shiv Gyani was working with me from February 2012. He was permanent resident of District – Fatehpur. I never got verified the driving licence of Shiv Gyani. ……… This was not in my knowledge that he has no driving licence. This is incorrect to say that I provided my vehicle to him to drive despite I was aware that he has bogus licence. I am aware of this that licence is issued on the address one resides. ……………This is incorrect to say that I am giving false evidence to save my skin. 9. The Tribunal while answering issue No.3, however, made no attempt to analyse the pleadings and evidence on record to ascertain whether the appellant (owner) was aware of the fake driving licence possessed by the driver (respondent No.6). The Tribunal merely adverted to the investigation and verification report and found that the stated driving licence was invalid. The High Court also made no attempt to enquire into the relevant aspect, as has been consistently expounded by this Court and restated in PEPSU Road Transport Corporation (supra). Even in the case of Premkumari (supra), the Court after considering the judicial precedents opined as follows: It is clear from the above decision when the owner after verification satisfied himself that the driver has a valid licence and was driving the vehicle in question competently at the time of the accident there would be no breach of Section 149(2)(a)(ii), in that event, the insurance company would not then be absolved of liability. It is also clear that even in the case that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner was aware or noticed that the licence was fake and still permitted him to drive. 10. The decision in PEPSU Road Transport Corporation (supra) was relied upon by the appellant before the High Court which, however, distinguished the same by observing that it was on the facts of that case, where the Court opined that there was no evidence to prove that the driving licence produced by the authorities was fake. That approach, in our opinion, is manifestly wrong. Whereas, even in that case, the Court was called upon to deal with the similar question as is involved in this appeal. In that case, the Court first adverted to the decision in United India Insurance Co. Ltd. Vs. Lehru and Ors. , and then to the three-Judge Bench decision in National Insurance Co. Ltd. Vs. Swaran Singh & Ors. . Paragraphs 99-101 of Swaran Singh (supra) have been extracted, which read thus: 99. So far as the purported conflict in the judgments of Kamla and Lehru is concerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companies, but whether despite the same, the plea of default on the part of the owner has been established or not would be a question which will have to be determined in each case. 100. This Court, however, in Lehru must not be read to mean that an owner of a vehicle can under no circumstances have any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for consideration in each individual case. 101. The submission of Mr Salve that in Lehru case, this Court has, for all intent and purport, taken away the right of an insurer to raise a defence that the licence is fake does not appear to be correct. Such defence can certainly be raised but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver. The Court then went on to advert to a two-Judge Bench decision of this Court in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, before dealing with the facts of the case before it 11. Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Indubitably, the High Court noted that the counsel for the appellant did not dispute that the driving licence was found to be fake, but that concession by itself was not sufficient to absolve the insurer. 12. As aforementioned, in the present case, neither the Tribunal nor the High Court has bothered to analyse the pleadings and evidence adduced by the parties on the crucial matter. Be that as it may, in this appeal, the limited grievance of the appellant-owner of the vehicle is about unjustly absolving the insurer merely on the finding that the driving licence of the driver (respondent No.6) was fake. No other aspect has been raised by the appellant nor do we intend to analyse or consider the same. 13. We, therefore, deem it appropriate to relegate the parties before the High Court for fresh consideration of the appeal filed by the appellant (owner) only on the question of liability of the owner or of the insurer (respondent No.7) to pay the compensation amount. 14. We make it clear that the High Court shall not examine any other issue in the remand proceedings. For, the compensation amount, as determined and directed by the Tribunal, has already been made over to the claimants.
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upon by the owner and the driver was fake and not valid. For, it was authenticated that no such driving licence was issued by the authority concerned8. It is also noticed that in the oral evidence, the appellant had stated that he had seen the photocopy of the driving licence of Shivgyani and was also satisfied about his driving skills, before employing him as the driver for driving the vehicle. In hisn by the insurer, the appellant stated thus:……I have not sold the vehicle. Driver Shiv Gyani was working with me from February 2012. He was permanent resident of District – Fatehpur. I never got verified the driving licence of Shiv Gyani. ……… This was not in my knowledge that he has no driving licence. This is incorrect to say that I provided my vehicle to him to drive despite I was aware that he has bogus licence. I am aware of this that licence is issued on the address one resides. ……………This is incorrect to say that I am giving false evidence to save my skin9. The Tribunal while answering issue No.3, however, made no attempt to analyse the pleadings and evidence on record to ascertain whether the appellant (owner) was aware of the fake driving licence possessed by the driver (respondent No.6). The Tribunal merely adverted to the investigation and verification report and found that the stated driving licence was invalid. The High Court also made no attempt to enquire into the relevant aspect, as has been consistently expounded by this Court and restated in PEPSU Road Transport Corporation (supra). Even in the case of Premkumari (supra), the Court after considering the judicial precedents opined as follows:It is clear from the above decision when the owner after verification satisfied himself that the driver has a valid licence and was driving the vehicle in question competently at the time of the accident there would be no breach of Section 149(2)(a)(ii), in that event, the insurance company would not then be absolved of liability. It is also clear that even in the case that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner was aware or noticed that the licence was fake and still permitted him to drive10. The decision in PEPSU Road Transport Corporation (supra) was relied upon by the appellant before the High Court which, however, distinguished the same by observing that it was on the facts of that case, where the Court opined that there was no evidence to prove that the driving licence produced by the authorities was fake. That approach, in our opinion, is manifestly wrong. Whereas, even in that case, the Court was called upon to deal with the similar question as is involved in this appeal. In that case, the Court first adverted to the decision in United India Insurance Co. Ltd. Vs. Lehru and Ors., and then to thee Bench decision in National Insurance Co. Ltd. Vs. Swaran Singh &1 of Swaran Singh (supra) have been extracted, which read thus:99. So far as the purported conflict in the judgments of Kamla and Lehru is concerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companies, but whether despite the same, the plea of default on the part of the owner has been established or not would be a question which will have to be determined in each case100. This Court, however, in Lehru must not be read to mean that an owner of a vehicle can under no circumstances have any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for consideration in each individual case101. The submission of Mr Salve that in Lehru case, this Court has, for all intent and purport, taken away the right of an insurer to raise a defence that the licence is fake does not appear to be correct. Such defence can certainly be raised but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driverThe Court then went on to advert to ae Bench decision of this Court in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut,before dealing with the facts of the case before it11. Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Indubitably, the High Court noted that the counsel for the appellant did not dispute that the driving licence was found to be fake, but that concession by itself was not sufficient to absolve the insurer12. As aforementioned, in the present case, neither the Tribunal nor the High Court has bothered to analyse the pleadings and evidence adduced by the parties on the crucial matter. Be that as it may, in this appeal, the limited grievance of ther of the vehicle is about unjustly absolving the insurer merely on the finding that the driving licence of the driver (respondent No.6) was fake. No other aspect has been raised by the appellant nor do we intend to analyse or consider the same13. We, therefore, deem it appropriate to relegate the parties before the High Court for fresh consideration of the appeal filed by the appellant (owner) only on the question of liability of the owner or of the insurer (respondent No.7) to pay the compensation amount14. We make it clear that the High Court shall not examine any other issue in the remand proceedings. For, the compensation amount, as determined and directed by the Tribunal, has already been made over to the claimants.
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Shri Vallabh Glass Works Limited and Others Vs. Union of India and Others | had discovered it or could have with reasonable diligence discovered it. In th e instant case the date on which the mistake was discovered by the appellants or the date on which the appellants could with reasonable diligence have discovered it is not clear from the record before us. No efforts also was made in t he course of the arguments urged on behalf of the appellants to establish it. We have, therefore, to assume that on the date each payment of excise duty made by the appellants in excess of the proper duty payable by them, the appellants coul d have discovered with due diligence that the duty claimed from them was excessive. Under Article 113 of the Limitation Act, 1963 which is applicable to this case, a suit for recovery of such excess duty had to be filed within three years from the date of payment to the Department. But the appellants instead of filing a suit, first filed a writ petition in Special Civil Application No. 1365 of 1976 on September 28, 1976 and that petition had to be withdrawn in view of clause (3) of Article 226 of the Constitution as it stood then because the alternative remedy by way of an appeal was available. The appellants could, therefore, file the writ petition out of which the appeal arises only after the disposal of the revision petition by the Government of India as mentioned earlier. It is not disputed that the High Courts have power, for the purpose of enforcement of fundamental rights and statutory rights, to make consequential orders for repayment of money realised by the Government without the authority of law under Article 226 of the Constitution. This is an alternative remedy provided by the Constitution in additional to but not in supersession of the ordinary remedy by way of suit in the absence of any provision which would bar such a suit either expressly or by necessary implication. While there are different periods of limitation prescribed for the institution of different kinds of suits by the limitation Act, 1963, there is no such period prescribed by law in respect of petitions filed under Article 226 of the Constitution. Whether relief should be granted to a . petitioner under Article 226 of the Constitution where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches. Where a petitioner who could have availed of the alternative remedy by way of suit approaches the High Court under Article 226 of the Constitution, i. is appropriate ordinarily to construe that any unexplained delay in the filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable. This rule, however, cannot be a rigid formula. There may be cases where ev en a delay of a shorter period may be considered to be sufficient to refuse relief in a petition under Article 226 of the Constitution. There may also be cases where there may be circumstances which may persuade the court to grant relief even though the petition may have been filed beyond the period of limitation prescribed for a suit. Each case has to judged on its own facts and circumstance touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc. In the instant case, the appellants had in fact approached the High Court on September 28, 1976 itself by filing Special Civil Application No. 1365 of 1976 for directing repayment of the excess duty paid by them. But no relief could be granted in that petition in view of the provisions of Article 226 of the Constitution as it stood then and the petition had to be withdrawn. Hence even granting that on the date of making each payment of excise duty in excess of the proper duty payable under law, the appellants should be deemed to have discovered the mistake, all such excess payments made on and after September 28, 1973 which would fall within the period of three years prior to t he date on which Special Civil Application No. 1365 of 1976 was filed should have been ordered to be refunded under Article 226 of the Constitution. But the High Court declined to do so on grounds of estoppel and acquiescence. While we do agree that t he appellants should not be granted any relief in respect of payment made between October 1, 1963 and September 27, 1973 which would fall beyond three years from the date of the first writ petition filed in this case we do not find it proper and just to negative the claim of the appellants in respect of excess payments made after September 28, 1973. In the instant case the appellants had made excess payments on being assessed by the Department and such payments cannot be treated as voluntary payments precluding them from recovering them. (See Sales Tax officer, Banaras &Ors. v. Kanhaiya Lal Mukundlal Saraf. We do not also find that the conduct of the appellants is of such a nature as would disentitle them to claim refund of excess payments made in respect of goods other than wired glass.We, therefore, modify the judgment and order passed by the High Court by quashing the assessments of excise duty made in respect of the goods in question other than wi red glass viz. figured glass, coloured figured glass, rolled glass and coolex wired glass for the period between September 28, 1973 and February 20, 1976 also and directing the assessing authority to make a fresh assessment in accordance with law in the light of the decision of the High Court. The respondents are further directed to refund after such fresh determination any excess duty that may be found to have been paid by the appellants. The fresh assessments shall be completed within four months from today. T | 0[ds]Since it is convenient to dispose of the second question at this stage, we shall take it up first. A few more facts which are relevant to this issue have to be stated here. As mentioned earlier the goods in respect of which dispute had been raised by the appellants in their application dated February 20, 1976 were figured glass, wired glass, coloured figured glass, rolled glass and coolex wired glass. But it is seen that in respect of wired glass, a dispute had arisen between the Department and the appellants earlier and in that case while the Department claimed that wired glass was subject to payment of duty under tariff Item 23A(4) the appellants pleaded that wired glass was liable to duty under tariff Item 23A(1). The Government of India ultimately by its order dated August 24, 1971 (in order No. 261 of 1971 of the Government of India on Central Excise Revision Application accepted the case of the appellants that wired glass was subject to duty wader tariff Item 23A - (1) and the appellants paid duty on that basis till February 20, 1976. These facts distinguish the case in respect of wired glass from the case in respect of the other goods While the said earlier order may not be a legal bar to the contention raised by the appellants on February 20, 1976 that wired glass was not taxable under tariff Item 23A(1) but under tariff Item 68 after that date, it is certainly a circumstance which disentitles the appellants to claim refund of excess duty paid by them in a petition under Article 226 of the Constitution on a ground contrary to their earlier stand. The claim for refund of excess duty paid on wired glass during the period prior to February 20, 1976 is liable to be rejected. The appeal of the appellants to that extent should, therefore, fall.In regard to the relief of refund of excess duty paid in respect of the other goods, the case stands on an entirely different footing. This is a case where the Department had assessed the duty payable by the appellants under a wrong provision. The appellants were obliged to pay the duty so assessed. They did not, no doubt, question the assessments by taking a specific stand as they had done earlier in the case of wired glass. The appellants, however, questioned the validity of the levy only on February 20, 1976 on the ground that tariff Item 23A (1) of the First Schedule to the Act under which the duty has been levied was not applicable to tile goods. While the Department refused to accept the said plea, the High Court has upheld it. In view of the decision of the High Court, the fact that the appellant had paid duty in excess of what they were bound in P law to pay should be now taken as having been established. It is. not disputed that if the appellants had filed a suit within the period of limitation the excess amount would have become refundable by virtue of section 72 of the Indian Contract Act. Section 17(1)(c) of -the Limitation Act, 1963provides that where in the case of any suit or application for which a period of limitation is prescribed u nder that Act, the suit or application is for relief from the consequence of a mistake, the period of limitation shall not begin to run until the plaintiff or applicant had discovered it or could have with reasonable diligence discovered it. In th e instant case the date on which the mistake was discovered by the appellants or the date on which the appellants could with reasonable diligence have discovered it is not clear from the record before us. No efforts also was made in t he course of the arguments urged on behalf of the appellants to establish it. We have, therefore, to assume that on the date each payment of excise duty made by the appellants in excess of the proper duty payable by them, the appellants coul d have discovered with due diligence that the duty claimed from them was excessive. Under Article 113 ofthe Limitation Act, 1963which is applicable to this case, a suit for recovery of such excess duty had to be filed within three years from the date of payment to the Department. But the appellants instead of filing a suit, first filed a writ petition in Special Civil Application No. 1365 of 1976 on September 28, 1976 and that petition had to be withdrawn in view of clause (3) of Article 226 of the Constitution as it stood then because the alternative remedy by way of an appeal was available. The appellants could, therefore, file the writ petition out of which the appeal arises only after the disposal of the revision petition by the Government of India as mentioned earlier. It is not disputed that the High Courts have power, for the purpose of enforcement of fundamental rights and statutory rights, to make consequential orders for repayment of money realised by the Government without the authority of law under Article 226 of the Constitution. This is an alternative remedy provided by the Constitution in additional to but not in supersession of the ordinary remedy by way of suit in the absence of any provision which would bar such a suit either expressly or by necessary implication. While there are different periods of limitation prescribed for the institution of different kinds of suits by the limitation Act, 1963, there is no such period prescribed by law in respect of petitions filed under Article 226 of the Constitution. Whether relief should be granted to a . petitioner under Article 226 of the Constitution where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches. Where a petitioner who could have availed of the alternative remedy by way of suit approaches the High Court under Article 226 of the Constitution, i. is appropriate ordinarily to construe that any unexplained delay in the filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable. This rule, however, cannot be a rigid formula. There may be cases where ev en a delay of a shorter period may be considered to be sufficient to refuse relief in a petition under Article 226 of the Constitution. There may also be cases where there may be circumstances which may persuade the court to grant relief even though the petition may have been filed beyond the period of limitation prescribed for a suit. Each case has to judged on its own facts and circumstance touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc. In the instant case, the appellants had in fact approached the High Court on September 28, 1976 itself by filing Special Civil Application No. 1365 of 1976 for directing repayment of the excess duty paid by them. But no relief could be granted in that petition in view of the provisions of Article 226 of the Constitution as it stood then and the petition had to be withdrawn. Hence even granting that on the date of making each payment of excise duty in excess of the proper duty payable under law, the appellants should be deemed to have discovered the mistake, all such excess payments made on and after September 28, 1973 which would fall within the period of three years prior to t he date on which Special Civil Application No. 1365 of 1976 was filed should have been ordered to be refunded under Article 226 of the Constitution. But the High Court declined to do so on grounds of estoppel and acquiescence. While we do agree that t he appellants should not be granted any relief in respect of payment made between October 1, 1963 and September 27, 1973 which would fall beyond three years from the date of the first writ petition filed in this case we do not find it proper and just to negative the claim of the appellants in respect of excess payments made after September 28, 1973. In the instant case the appellants had made excess payments on being assessed by the Department and such payments cannot be treated as voluntary payments precluding them from recovering them. (See Sales Tax officer, Banaras &Ors. v. Kanhaiya Lal Mukundlal Saraf. We do not also find that the conduct of the appellants is of such a nature as would disentitle them to claim refund of excess payments made in respect of goods other than wired glass.We, therefore, modify the judgment and order passed by the High Court by quashing the assessments of excise duty made in respect of the goods in question other than wi red glass viz. figured glass, coloured figured glass, rolled glass and coolex wired glass for the period between September 28, 1973 and February 20, 1976 also and directing the assessing authority to make a fresh assessment in accordance with law in the light of the decision of the High Court. | 0 | 2,890 | 1,670 | ### Instruction:
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had discovered it or could have with reasonable diligence discovered it. In th e instant case the date on which the mistake was discovered by the appellants or the date on which the appellants could with reasonable diligence have discovered it is not clear from the record before us. No efforts also was made in t he course of the arguments urged on behalf of the appellants to establish it. We have, therefore, to assume that on the date each payment of excise duty made by the appellants in excess of the proper duty payable by them, the appellants coul d have discovered with due diligence that the duty claimed from them was excessive. Under Article 113 of the Limitation Act, 1963 which is applicable to this case, a suit for recovery of such excess duty had to be filed within three years from the date of payment to the Department. But the appellants instead of filing a suit, first filed a writ petition in Special Civil Application No. 1365 of 1976 on September 28, 1976 and that petition had to be withdrawn in view of clause (3) of Article 226 of the Constitution as it stood then because the alternative remedy by way of an appeal was available. The appellants could, therefore, file the writ petition out of which the appeal arises only after the disposal of the revision petition by the Government of India as mentioned earlier. It is not disputed that the High Courts have power, for the purpose of enforcement of fundamental rights and statutory rights, to make consequential orders for repayment of money realised by the Government without the authority of law under Article 226 of the Constitution. This is an alternative remedy provided by the Constitution in additional to but not in supersession of the ordinary remedy by way of suit in the absence of any provision which would bar such a suit either expressly or by necessary implication. While there are different periods of limitation prescribed for the institution of different kinds of suits by the limitation Act, 1963, there is no such period prescribed by law in respect of petitions filed under Article 226 of the Constitution. Whether relief should be granted to a . petitioner under Article 226 of the Constitution where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches. Where a petitioner who could have availed of the alternative remedy by way of suit approaches the High Court under Article 226 of the Constitution, i. is appropriate ordinarily to construe that any unexplained delay in the filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable. This rule, however, cannot be a rigid formula. There may be cases where ev en a delay of a shorter period may be considered to be sufficient to refuse relief in a petition under Article 226 of the Constitution. There may also be cases where there may be circumstances which may persuade the court to grant relief even though the petition may have been filed beyond the period of limitation prescribed for a suit. Each case has to judged on its own facts and circumstance touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc. In the instant case, the appellants had in fact approached the High Court on September 28, 1976 itself by filing Special Civil Application No. 1365 of 1976 for directing repayment of the excess duty paid by them. But no relief could be granted in that petition in view of the provisions of Article 226 of the Constitution as it stood then and the petition had to be withdrawn. Hence even granting that on the date of making each payment of excise duty in excess of the proper duty payable under law, the appellants should be deemed to have discovered the mistake, all such excess payments made on and after September 28, 1973 which would fall within the period of three years prior to t he date on which Special Civil Application No. 1365 of 1976 was filed should have been ordered to be refunded under Article 226 of the Constitution. But the High Court declined to do so on grounds of estoppel and acquiescence. While we do agree that t he appellants should not be granted any relief in respect of payment made between October 1, 1963 and September 27, 1973 which would fall beyond three years from the date of the first writ petition filed in this case we do not find it proper and just to negative the claim of the appellants in respect of excess payments made after September 28, 1973. In the instant case the appellants had made excess payments on being assessed by the Department and such payments cannot be treated as voluntary payments precluding them from recovering them. (See Sales Tax officer, Banaras &Ors. v. Kanhaiya Lal Mukundlal Saraf. We do not also find that the conduct of the appellants is of such a nature as would disentitle them to claim refund of excess payments made in respect of goods other than wired glass.We, therefore, modify the judgment and order passed by the High Court by quashing the assessments of excise duty made in respect of the goods in question other than wi red glass viz. figured glass, coloured figured glass, rolled glass and coolex wired glass for the period between September 28, 1973 and February 20, 1976 also and directing the assessing authority to make a fresh assessment in accordance with law in the light of the decision of the High Court. The respondents are further directed to refund after such fresh determination any excess duty that may be found to have been paid by the appellants. The fresh assessments shall be completed within four months from today. T
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for which a period of limitation is prescribed u nder that Act, the suit or application is for relief from the consequence of a mistake, the period of limitation shall not begin to run until the plaintiff or applicant had discovered it or could have with reasonable diligence discovered it. In th e instant case the date on which the mistake was discovered by the appellants or the date on which the appellants could with reasonable diligence have discovered it is not clear from the record before us. No efforts also was made in t he course of the arguments urged on behalf of the appellants to establish it. We have, therefore, to assume that on the date each payment of excise duty made by the appellants in excess of the proper duty payable by them, the appellants coul d have discovered with due diligence that the duty claimed from them was excessive. Under Article 113 ofthe Limitation Act, 1963which is applicable to this case, a suit for recovery of such excess duty had to be filed within three years from the date of payment to the Department. But the appellants instead of filing a suit, first filed a writ petition in Special Civil Application No. 1365 of 1976 on September 28, 1976 and that petition had to be withdrawn in view of clause (3) of Article 226 of the Constitution as it stood then because the alternative remedy by way of an appeal was available. The appellants could, therefore, file the writ petition out of which the appeal arises only after the disposal of the revision petition by the Government of India as mentioned earlier. It is not disputed that the High Courts have power, for the purpose of enforcement of fundamental rights and statutory rights, to make consequential orders for repayment of money realised by the Government without the authority of law under Article 226 of the Constitution. This is an alternative remedy provided by the Constitution in additional to but not in supersession of the ordinary remedy by way of suit in the absence of any provision which would bar such a suit either expressly or by necessary implication. While there are different periods of limitation prescribed for the institution of different kinds of suits by the limitation Act, 1963, there is no such period prescribed by law in respect of petitions filed under Article 226 of the Constitution. Whether relief should be granted to a . petitioner under Article 226 of the Constitution where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches. Where a petitioner who could have availed of the alternative remedy by way of suit approaches the High Court under Article 226 of the Constitution, i. is appropriate ordinarily to construe that any unexplained delay in the filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable. This rule, however, cannot be a rigid formula. There may be cases where ev en a delay of a shorter period may be considered to be sufficient to refuse relief in a petition under Article 226 of the Constitution. There may also be cases where there may be circumstances which may persuade the court to grant relief even though the petition may have been filed beyond the period of limitation prescribed for a suit. Each case has to judged on its own facts and circumstance touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc. In the instant case, the appellants had in fact approached the High Court on September 28, 1976 itself by filing Special Civil Application No. 1365 of 1976 for directing repayment of the excess duty paid by them. But no relief could be granted in that petition in view of the provisions of Article 226 of the Constitution as it stood then and the petition had to be withdrawn. Hence even granting that on the date of making each payment of excise duty in excess of the proper duty payable under law, the appellants should be deemed to have discovered the mistake, all such excess payments made on and after September 28, 1973 which would fall within the period of three years prior to t he date on which Special Civil Application No. 1365 of 1976 was filed should have been ordered to be refunded under Article 226 of the Constitution. But the High Court declined to do so on grounds of estoppel and acquiescence. While we do agree that t he appellants should not be granted any relief in respect of payment made between October 1, 1963 and September 27, 1973 which would fall beyond three years from the date of the first writ petition filed in this case we do not find it proper and just to negative the claim of the appellants in respect of excess payments made after September 28, 1973. In the instant case the appellants had made excess payments on being assessed by the Department and such payments cannot be treated as voluntary payments precluding them from recovering them. (See Sales Tax officer, Banaras &Ors. v. Kanhaiya Lal Mukundlal Saraf. We do not also find that the conduct of the appellants is of such a nature as would disentitle them to claim refund of excess payments made in respect of goods other than wired glass.We, therefore, modify the judgment and order passed by the High Court by quashing the assessments of excise duty made in respect of the goods in question other than wi red glass viz. figured glass, coloured figured glass, rolled glass and coolex wired glass for the period between September 28, 1973 and February 20, 1976 also and directing the assessing authority to make a fresh assessment in accordance with law in the light of the decision of the High Court.
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The Amalgamated Electricity Co. Ltd Vs. N.S. Bhathena And Another | the State Electricity Board and it refers to a letter. "No AMAL/BEL/C2; dated 7-8-1958" written by the appellant to the Board and the letter last mentioned, which is Ex. 60, is the notice by the appellant to the Board expressing its intention to revise the rates. It is quite clear, therefore, that notice had been given to the Board of the proposed enhancement. This point, it may be stated, does not seem to have been taken in the High Court.20. It was also said that the notice was bad as it did not state that the standing charge was being increased from Rs. 2/- to Rs. 2.69 per B.H.P. per month. This again is an unfounded contention for the standing charge had not been increased by the notice at all. Indeed the plaint itself in Paragraph 5 states that prior to November 1, 1958 the appellant had been levying standing charges at the rate of Rs. 2.69. So there was no enhancement of this charge by the notice and, hence no question of giving any notice of any enhancement of the standing charge arises.21. Lastly, it was said that in the notice to the consumers it was stated that the power supply would be restricted between certain hours but the notice to the government did not mention this restriction in the supply. The notice to the consumers no doubt stated that the revised unit charge would be in respect of restricted hours of supply but that does not make the contention of any substance. There was nothing in the notice to show that the supply would be restricted. Further it is neither alleged in the plaint nor does it appear from anything on the record, that there was in fact any restriction in the supply. That being so, the failure to give notice to the government of the restriction in the supply is wholly immaterial. I have not, further, been shown any provision under which notice to the government of a restriction in the supply of electricity is necessary. It is certainly not required by anything in Paragraph 1 in the Sixth Schedule to the Act of 1948.22. I am, therefore, of the opinion that there is no reason to hold that the appellant was not entitled to levy the charge mentioned in its notice of September 25, 1948.23. I come now to the standing charge of Rs. 2.69 per B.H.P. per month. As in the case of the other charge and for the same reasons. I am not concerned with any question as to its legality in respect of any period prior to the suit. It has to be remembered that there is no complaint that this rate had been increased, by the notice. Lastly, as already stated, a civil court cannot go into the question whether a charge is illegal inasmuch as it has been revised to an amount exceeding the limit mentioned in Paragraph 1 of the Sixth Schedule to the Act of 1948. The only ground on which this charge is questioned is put up in Paragraph 23 of the plaint in these words : "any standing charges along with the usual Unit Charges is against equity and law, it being double charge for the industry to pay for the enrichment of the defendants"; the legality of the standing charge is not challenged on any other ground. Now where a charge is permitted by a statute no question of its being inequitable can be raised in a court of law neither can the question whether the charge is in excess of the limit justified by the statute be canvassed in such a court. Therefore, the respondents cannot in these cases challenge the legality of the standing charge.24. What I have said so far disposes of the appeal in the suit concerning the rates charged for the supply of motive power. That appeal must therefore be allowed.25. The appeal in the suit with regard to the charges for lights and fans can be disposed of substantially on the grounds earlier discussed. The High Court also placed its decision in respect of this matter on the same ground on which it had disposed of the other matter. The only point made in this case is that the appellant had been wrongfully charging a rate in excess of the limit fixed by the order of December 30, 1942 by 0-06 np. per unit. On this basis a declaration that the excess charge was illegal was sought and also an injunction restraining the appellant from levying it. It will be observed that in this case there was no notice given by the appellant of any increase in the charge. No question of the charge being illegal by reason of any enhancement, therefore, arises. The only complaint is that the charge is illegal as it is in excess of the limit fixed by the government. As I have said, under Paragraphs I and II of the Sixth Schedule to the Act of 1948 a licensee can charge any amount so that his clear profit does not exceed his reasonable return and if he exceeds the limit he only exposes himself to the consequences mentioned in them and a consumer cannot go to a court of law for relief on the ground that the licensee had exceeded this limit. Therefore, the respondent cannot ask for any relief in a civil court on the basis that the appellant had exceed the limit. As in the other case, in this case also I am not concerned with the legality of any charge made prior to the date of the suit; the only question is the legality of the charge made since March 31, 1959. That question has to be decided under Act of 1948 as amended in 1956. It follows that in this case also the respondents can get no assistance from the decision in Babulal Chaganlal, ILR (1955) Bom 42 : (AIR 1955 Bom 182 ) even if that case was rightly decided. | 1[ds]This provision also supports the view that the power to enhance the rates given by the act of 1948 is not in any way affected by anything in the Act of 1910 or the licence granted undercontention appears to me to be entirely unfounded. No doubt a licensee can ask the Government to constitute a rating committee under that section and if the Government does so and fixes rates on the basis of the recommendations of that committee the licensee would be bound by such fixation of rates. But I find nothing in S. 57A or anywhere else in the Act of 1948 to lead to the view that the licensee cannot increase his rates except after a rating committee has recommended such increase and the Government has permitted it. Such a view would largely render paragraph I of the Sixth Schedule nugatory. Nor do I think that there is any conflict between S. 57A and paragraph I as was contended by the respondents. Quite clearly S. 57A gives a licensee the power to call for the constitution of rating committee. If he does so, he does not take the risk of fixing an enhanced rate on his own with the possible consequences of having to refund part of the amounts collected under provisions to which reference will be made later. That seems to be the only reason why the licensee has been given the right to ask for the constitution of a rating committee. If he does not mind taking the risk of these consequences, I find nothing in the Act of 1948 requiring him to ask for the constitution of a rating committee before he can proceed to enhance the rates on hisam wholly unable to agree that(2) of S. 70 of the Act of 1948 requires the two Acts to be harmonised. In fact(1) of S. 70 of the Act of 1948 provides that when there is inconsistency between the two Acts, the earlier Act is not to have effect. There can be no question of harmonising unless there is inconsistency and(1) says what is to happen in the case of inconsistency; it is that one is to give way to the other and not that an attempt should be made to harmonise the two. Furthermore(2) of S. 70 of the Act of 1948 says that "Save as otherwise provided in this Act" the later Act is not to be read as in derogation of the earlier Act. When therefore, it is otherwise provided in the Act of 1948, this Act might be read as in derogation of the Act of 1910. Now S. 57 of the Act of 1948 and paragraph 1 of the Sixth Schedule to it clearly provide that the provisions therein contained are to override the provisions of the earlier Act. It would thus be against the express terms of the Act of 1948 to attempt to harmonise the power to enhance the rates given to the licensee by it with any of the provisions of the licence or the Act ofwas no doubt so decided in that case but then it turned on Paragraph 1 of the Sixth Schedule as it stood before the amendment in 1956. Before the amendment, that paragraph did not contain the words "Nowwithstanding anything contained in the Indian Electricity Act, 1910 (9 of 1910) and the provisions in the licence of a licencee."It seems to me plain that these words have made a material change in the provisions and as it now stands, it cannot be said that the enhancement permitted must be restricted to the limit fixed in the licence or an order by the government. The decision cited, therefore, is of no assistance in interpreting Paragraph 1 of the Sixth Schedule as it stands after the amendment in 1956. Whether Chaganlals case. ILR (1955) Bom 42 : (AIR 1955 Bom 182 ) was correctly decided in view of the terms of Paragraph 1 as it stood before the amendment is not a question which arises for determination in this case and on that question I express no opinion. I think that it must be held on the terms of Paragraph 1 of the Sixth Schedule to the Act of 1948 as it stood at the time of the notice that a licensee had power to enhance the rates and such power was not limited to an enhancement up to the limits fixed by the licence or otherwise by any order of thethink that it must be held on the terms of Paragraph 1 of the Sixth Schedule to the Act of 1948 as it stood at the time of the notice that a licensee had power to enhance the rates and such power was not limited to an enhancement up to the limits fixed by the licence or otherwise by any order of theeven if the appellant had not revised its charge prior to the amendment, no grievance on that account can be made on the plaint on which the present suit is based. Furthermore I do not see why the burden of proving that those charges were the charges duly revised under the Act of 1948 prior to its amendment should be upon the appellant. No issue on this question also appears to have been framed by the trial Court at all. Even the plaint does not say that what the appellant had done was to continue an illegal charge. I repeat that whether the charges made before November 1, 1958 were illegal or not, is not a question that arises for decision in these cases. Admittedly the notice of September 25, 1958, revised the unit charge and, therefore, in fact there was no continuation of an earlier illegal charge, assuming the earlier charge to have been illegal.15. The High Court, however, also held that the appellant was under a statutory duty under the Act of 1948 to adjust its rates so that its clear profit did not exceed the amount of reasonable return and it had not established that it had done so after the Act was amended, nor had it proved that the enhancement mentioned in the notice of September 25, 1958 would not result in its clear profits exceeding the amount of reasonable return. Lastly, the High Court observed that "Even otherwise the enhancement is the continuation of the illegal charges and that by itself is invalid." It was on these grounds that the High Court decided the cases in favour of the respondents. I am unable to agree with the High Court on any of these points.16. I will take the last point first. With respect to the learned Judges of the High Court. I do not understand what exactly is meant by the enhancement being the continuation of the illegal charge. That there was a revision of the rates by the notice of September 25, 1958 is the respondents own case in the plaint. I will assume that the revision raised the rates to the figures that were chargeable under the expired Surcharge Act of 1946. But the identity of the figures cannot by itself make the enhancement illegal if it was legal under the Act of 1948 as amended. Indeed as there was admittedly a revision there was really no continuation of a previous charge. This point must, therefore, be rejected.17. The other points on which, as stated above, the High Court based itself, appear to me to be equally untenable. These points are really one and that is whether the appellant has established that the revised rate fixed by the notice of September 25, 1958 would not make its clear profit exceed the amount of reasonable return. As already stated, it is admitted in the plaint that there was a revision of the unit charge by the notice. So it is not in dispute that after the amendment of Paragraph 1 of the Sixth Schedule the appellant had revised its unit charge.I am unable to agree that the onus of establishing that the revision did not make the appellants clear profit exceed the amount of a reasonable return should be on the appellant. I think that onus should be on the respondents because it is they who allege that "the rates mentioned by the defendant are exceeding the reasonable return". The more serious objection to this point, however is that it does not seem to me that it is competent for a civil court to go into the question whether the enhanced rates are illegal because they take the clear profit beyond the amount of the reasonable return, and to give any relief on that basis. The reasons for this view will now beprovision shows that where there was a revised rate and that rate exceeded the limit prescribed in Paragraph I, a consumer might get a refund of a part of the excess but that too only at the discretion of the government. He had clearly no right to any refund even in such a case. Quite obviously if the consumer could obtain refund of the whole excess as determined by a civil court, these provisions would be completely meaningless. Equally obviously if a civil court could decide that the charge made had exceeded the limit and was, therefore, illegal, it could also direct a refund of the amount illegally realised. Therefore, it seems to me clear that the question of a breach of the terms of the first part of Paragraph I of the Sixth Schedule was not intended to be canvassed in a civil court; a civil court has no power to decide that question nor can it give any relief in respect thereof. Indeed if this were not so; the consequences would be most anomalous. If the civil court could decide the question whether the enhanced rate resulted in the clear profit exceeding the amount of the reasonable return, then it is conceivable that different courts might come to different conclusions on different materials placed before them and the result of that would be to destroy the uniformity of rates chargeable by a licensee. Such a situation could not have been intended. Again the Act of 1948 did not give to the consumer the right to have a rating committee constituted. This was obviously because it would be impossible to work a public utility concern like an electric supply business if every consumer could get a rating committee to go into the question of rates. There may then be a continuous succession of rating committees and there would be no fixity of the rates chargeable. The convenience of all had to be kept in mind. Power was hence given only to the Government to take steps when a licensee committed a breach of its obligations. Therefore, in my opinion, the High Court was in error in holding that the appellant should have shown that the enhancement did not result in its clear profit exceeding the amount of reasonable return and in deciding in favour of the respondents on that basis. I hold that the respondents were not entitled to canvass in a civil court any question as to the rates of a licensee being in excess of the limit prescribed in Paragraph 1 of the Sixth Schedule to the Act of 1948. A civil court could not declare that the rates charged by a licensee were illegal as they made its clear profit exceed the reasonable return. If there was such excess, the relief could be obtained only if the Government set up a rating committee, a refund became due thereupon under the last proviso to Paragraph 1 of the Sixth Schedule to the Act of 1948 or if relief was available under Paragraph II (1) of that Schedule.19. Then it was said that the revision by the notice of September 25,1958 was bad in any case because under the third proviso to Paragraph 1 in the Sixth Schedule there could be no revision of rates under that paragraph unless a notice in writing of the intention to enhance was given by the licensee to the Government or to the State Electricity Board and no such notice was in fact given. That proviso no doubt require a notice to be given but the contention is nonetheless clearly without foundation for as I shall immediately show such a notice was in fact given. Now Ex. 62 is a copy of a letter received by the appellant from the Secretary of the State Electricity Board and it refers to a letter. "No AMAL/BEL/C2; datedwritten by the appellant to the Board and the letter last mentioned, which is Ex. 60, is the notice by the appellant to the Board expressing its intention to revise the rates. It is quite clear, therefore, that notice had been given to the Board of the proposed enhancement. This point, it may be stated, does not seem to have been taken in the High Court.20. It was also said that the notice was bad as it did not state that the standing charge was being increased from Rs. 2/to Rs. 2.69per B.H.P. per month.This again is an unfounded contention for the standing charge had not been increased by the notice at all. Indeed the plaint itself in Paragraph 5 states that prior to November 1, 1958 the appellant had been levying standing charges at the rate of Rs. 2.69. So there was no enhancement of this charge by the notice and, hence no question of giving any notice of any enhancement of the standing charge arises.21. Lastly, it was said that in the notice to the consumers it was stated that the power supply would be restricted between certain hours but the notice to the government did not mention this restriction in the supply. The notice to the consumers no doubt stated that the revised unit charge would be in respect of restricted hours of supply but that does not make the contention of any substance. There was nothing in the notice to show that the supply would be restricted. Further it is neither alleged in the plaint nor does it appear from anything on the record, that there was in fact any restriction in the supply. That being so, the failure to give notice to the government of the restriction in the supply is wholly immaterial. I have not, further, been shown any provision under which notice to the government of a restriction in the supply of electricity is necessary. It is certainly not required by anything in Paragraph 1 in the Sixth Schedule to the Act of 1948.22. I am, therefore, of the opinion that there is no reason to hold that the appellant was not entitled to levy the charge mentioned in its notice of September 25, 1948.23. I come now to the standing charge of Rs. 2.69per B.H.P. per month.As in the case of the other charge and for the same reasons. I am not concerned with any question as to its legality in respect of any period prior to the suit. It has to be remembered that there is no complaint that this rate had been increased, by the notice. Lastly, as already stated, a civil court cannot go into the question whether a charge is illegal inasmuch as it has been revised to an amount exceeding the limit mentioned in Paragraph 1 of the Sixth Schedule to the Act of 1948. The only ground on which this charge is questioned is put up in Paragraph 23 of the plaint in these words : "any standing charges along with the usual Unit Charges is against equity and law, it being double charge for the industry to pay for the enrichment of the defendants"; the legality of the standing charge is not challenged on any other ground. Now where a charge is permitted by a statute no question of its being inequitable can be raised in a court of law neither can the question whether the charge is in excess of the limit justified by the statute be canvassed in such a court. Therefore, the respondents cannot in these cases challenge the legality of the standing charge.24. What I have said so far disposes of the appeal in the suit concerning the rates charged for the supply of motive power. That appeal must therefore be allowed.25. The appeal in the suit with regard to the charges for lights and fans can be disposed of substantially on the grounds earlier discussed. The High Court also placed its decision in respect of this matter on the same ground on which it had disposed of the other matter. The only point made in this case is that the appellant had been wrongfully charging a rate in excess of the limit fixed by the order of December 30, 1942 bynp. per unit. On this basis a declaration that the excess charge was illegal was sought and also an injunction restraining the appellant from levying it. It will be observed that in this case there was no notice given by the appellant of any increase in the charge. No question of the charge being illegal by reason of any enhancement, therefore, arises. The only complaint is that the charge is illegal as it is in excess of the limit fixed by the government. As I have said, under Paragraphs I and II of the Sixth Schedule to the Act of 1948 a licensee can charge any amount so that his clear profit does not exceed his reasonable return and if he exceeds the limit he only exposes himself to the consequences mentioned in them and a consumer cannot go to a court of law for relief on the ground that the licensee had exceeded this limit. Therefore, the respondent cannot ask for any relief in a civil court on the basis that the appellant had exceed the limit. As in the other case, in this case also I am not concerned with the legality of any charge made prior to the date of the suit; the only question is the legality of the charge made since March 31, 1959. That question has to be decided under Act of 1948 as amended in 1956. It follows that in this case also the respondents can get no assistance from the decision in Babulal Chaganlal, ILR (1955) Bom 42 : (AIR 1955 Bom 182 ) even if that case was rightlyare drawing; attention to this provision to indicate thebetween the two Actsthe Electricity Act, 1910 and the Supply Act, 1948.So far as the 1st point is concerned viz., whether the maxima prescribed by Government under the Electricity Act, 1910 still continues to bind the licensee after the coming into force of the Supply Act, we feel no hesitation in agreeing with the submission of the Appellant which found favour with the High Court. Section 57 of the Supply Act, 1948both as originally enacted and as amended in 1956 expressly provided that the provisions of the VIth Schedule shall be deemed to be incorporated in the license of every licensee and "that the provisions of the Indian Electricity Act, 1910 and the license granted thereunder and any other law, agreement or instrument applicable to the licensee shall be void and of no effect in so far as they are inconsistent with the provisions of the section and the said Schedule. Read in the light of S. 70 of the Supply Act it would follow that if any restriction incorporated in the licence granted under the Electricity Act, 1910 is inconsistent with the rate which a licensee might charge under Para I of Sch. VI of the Supply Act, 1948, the former would, to that extent, be superseded and the latter would prevail.43. Para I of Sch. VI both as it originally stood and as amended, as seen already empowered the licensee "to adjust his rates, so that his clear profit in any year shall not, as far as possible, exceed the amount of reasonable return. We shall reserve for later consideration the meaning of the expression "so adjust his rates. But one thing is clear and that is that the adjustment is unilateral and that the licensee has a statutory right to adjust his rates provided he conforms to the requirements of that paragraph viz., the rate charged does not yield a profit exceeding the amount of reasonable return. The conclusion is therefore irresistible that the maxima prescribed by the State Government which bound the licensee under the Electricity Act of 1910 no longer limited the amount which a licensee could charge after the Supply Act, 1948 came into force, since the "clear profit and "reasonable return which determined the rate to be charged was to be computed on the basis of very different criteria and factors than what obtained under the Electricity Act.With great respect to the learned Judge we are unable to agree with this decision, for, in our opinion, the provisions of the Supply Act, 1948 to which we have adverted are to strong to permit the construction, that the maxima prescribed under the Electricity Act of 1910 survives as a fetter on the rights of the licensee under paragraph I of the VIth Schedule. If there was any room for any argument of this kind on the terms of Para I of Sch. VI as originally enacted, the matter is placed beyond possibility of dispute by the amendment effected by Act 101 of 1956 to the VIth Schedule where the opening paragraph commences with the words notwithstanding anything contained in the Indian Electricity Act and the provisions in the licence of a licensee. We, therefore, consider that the first submission of learned Counsel for the Appellant that the limit imposed by the maxima prescribed by the State Government ceased to be in force after the Supply Act of 1948 came into force is wellother words, where no change is needed, it might be presumed that no adjustment was needed. In view of the machinery that it provided for complaints in the event of the licensee deriving more than a reasonable return as contemplated by the VIth Schedule we consider that the failure consciously to adjust the rates by working out the details so as to reach at the same rate as was charged previously does not constitute a failure "to adjust the rates as required by Paragraph 1.Taking up, first, the question of lights and fans (and the standing charges for the supply of power would be governed by similar considerations) the position would be that the Appellant must be deemed to have adjusted his rates under Paragraph 1 of the VIth Schedule when after the lapse of the Bombay Act of 1946 it continued to levy the same charges. When in 1949 or 1950 it is deemed to have adjustment, Paragraph I which empowered it to make this adjustment contained a proviso which we shallthat the licensee shall not be considered to have failed so to adjust his rates if the clear profit in any year of account has not exceeded by more than 30 per cent of the amount of the reasonableproviso, no doubt, uses a double negative "not be considered to have failed but expressed in positive terms it would mean that where the licensee adjusted his rates so that his clear profit exceeds by more than 30 per cent the reasonable return to which it was entitled, it could not be said to have adjusted his rates. In other words, such an adjustment would not be an adjustment at all as is contemplated by Paragraph 1. Paragraph 2 of the VIth Schedule proceeds on the basis that there is an adjustment within Paragraph 1; in other words, that the rate charged would yield to the licensee a clear profit which would not exceed the reasonable return by more than 30 per cent. It is only on that basis that the percentages specified in Paragraph 2 could be properly appreciated, for it proceeds to take the excess over the reasonable return, divide it by 3 and of that 1/3rd allot a proportion not exceeding 7 1/2over to the licensee himself. Of the balance half is to be appropriated to the Tariffs and Dividend Control Reserve and the other half is directed to be given to the consumers by granting them proportional rebates. From the percentages named in Para II read in conjunction with the absolute prohibition against a rate which would yield more than 30% over the reasonable return it appears to us that the lawfully adjusted rate contemplated by Paragraph 1 is one where the amount of clear profit does not exceed the "reasonable return by more than the maximum specified i.e., 30 per cent. The other paragraphs of the VIth Schedule deal with the creation and disposal of certain funds and reserves to which it is not necessary to refer.49. We thus reach the position that there could be a unilateral adjustment of the rates by a licensee but that such an adjustment must not leave him with more than the reasonable return plus another 30 per cent, this being an absolute limitation on the power to "adjust. Where the amount of "reasonable return is exceeded Paragraph 2 comes into play and the excess over the reasonable return is distributed in the manner laid down in thatresult of this would obviously be that there should have been a further adjustment by licensees so as to conform to the revised pattern. Here again, the question would arise whether there should be a conscious readjustment. Applying the rule of construction we have explained, earlier in relation to "adjustment in 1949 or 1950 it would be seen that if the rate previously charged yielded a profit over the "reasonable return" of 15% or less there need be no readjustment and if the rate charged yields more than this permitted profit there should be a readjustment. The result would, therefore, be that unless it is established that the rate, charged by the Appellant for lights and fans and for the standing monthly charge for supply of power resulted in a profit to it of more than 15% over the reasonable return, the Appellant would be held to have properly adjusted these rates in conformity with the requirements of the relevant provisions of the Supply Act as amended by Act 101 of 1956.51. We shall, when dealing with the question relating to the jurisdiction of a Civil Court to entertain suits relating to infractions by licensees of their obligations under Para 1 of the VIth Schedule which is the last of the matters debated before us, also examine the question as to the party on whom the burden of proof would lie to establish that the adjustment which is made or which could be deemed to be made by a licensee by the continuance of arate contravenes the statutorylicensee notified to the consumers on September 25, 1958 his intention to enhance the unit rate for the supply of power. Previous thereto in terms of that proviso a notice in writing had been issued to the State Government intimating its intention to enhance the rate, and thereafter the consumers were notified of this increase in rates. It would be seen that the 3rd proviso to para I requires a notice to the State Government of the intention of the licensee to enhance the rates. On August 7, 1958 the Appellant intimated the Government of Mysore setting out the clear profit it had made inand the estimated working position inand its intention to increase the unit rate for supply of power from 6 nP to 9 nP. unit. Thereafter, on September 25, 1958, it notified the consumers that on and after November 1, 1958 it would be charging the enhanced unit rate together with the previously existing standing charges of Rs. 2.69per B.H.P. per month.The only point that was suggested as invalidating the notice to the Government was that the Government were not informed that the licensee was effecting an enhancement of the rates as regards the standing charges and that the notice was, therefore, bad. We do not consider that there is any substance in this objection, Rs. 2.69 was the charge which had been made prior to the notice as standing charges and if, as we have held, that was the rate which must be deemed to have been adjusted and which the appellant was entitled to charge when Sch. VI as it originally stood, the continuance of the same charge after the amendment of the Schedule would not make it an enhancement.53. There is, however, one circumstance to which it is necessary to advert. As already stated, the rate charged prior to the Supply Act, 1948 and which was continued thereafter would be a lawful rate only if the profit that it left to the licensee was less than 30% over the reasonable return. This was the position when the Supply Act, 1948 came into force. By reason of the amendment effected by Act 101 of 1956 the percentage of permissible profit was reduced to 15% and so the adjusted rate would be valid if it was within this permissible limit. Unless the adjusted rate prior to the amendment of 1956 was in excess of 15 per cent permitted by the 1st proviso to paragraph 1 the continuance of such rate could not be objected to as an enhancement or as a violation of the paragraph 1 of the VI the Schedule. The question as to the burden of proof as regards this requirement and whether the same has been discharged in these cases we shall reserve for later consideration. Subject to this so far as regards the unit charge, the requirement of the third proviso to paragraph 1 was complied with. There was thus no illegality or invalidity attaching to the notice to the Government issued under proviso 3 to paragraph 1 and the contention raised in that behalf by respondents must be rejected.It is undoubted that these provisions have laid down a specific procedure for violations by the licensee of the requirements of Sch. VI. There being no express bar to the jurisdiction of the Civil Court, we have to determine the scope and extent of the bar that could be implied from the existence of these provisions. One thing, however, is clear; the bar cannot extent beyond the scope and limits of the jurisdiction of the rating committee; or expressed in other words, the jurisdiction of the civil court could not be held to be excluded in respect of those matters which are no assigned by S.to the Rating Committee, or in regard to which the rating committee cannot afford the consumer relief against an infraction of a statutory provision by which he isis doubtless a serious argument which requires careful examination. In this context and in support of this submission stress was laid on the words "the licensee has failed to comply with any of the provisions of the Sixth Schedule occurring in S. 57, A (1) (a) (i) and it was urged that for any and every default of the licensee resort must be had to the Board or the Government and could not be had to the civil courts. But from these provisions it does not in our opinion, follow that the jurisdiction of a civil court is barred in respect of the infraction of every obligation cast on a licensee by Sch. VI. Broadly speaking, the utmost that could be urged would be that the bar to the jurisdiction of a civil court would bewith and be restricted to the powers of the rating committee and the reliefs which the committee could grant under S.few examples of breaches of Sch. VI which a licensee may commit and in regard to which a reference to the rating committee is not contemplated would make our meaning clear. The first proviso to paragraph 1 specifies that "such rates shall not be enhanced more than once in any year of account. Let us suppose that the licensee contravenes this prohibition and enhances the rate more than once. There is no provision in S.for the rating committee to control the licensee in the event of his transgressing a positive prohibition of this sort and, indeed, it would be most anomalous to say that the statute having made a provision that the rates shall not be enhanced more than once in a year, the consumer is left without a remedy if the Government does not choose to appoint a rating committee which, as we said earlier, has no power to afford redress to the affected consumer. In such a case it appears to us that by no principle of construction can the jurisdiction of a civil court to grant a declaration and an injunction be denied. It would also follow that if that rate is collected, the court could order a refund of the illegal collection. Take next the case where a licensee in contravention of the 3rd proviso enhances the rates for the supply of electricity without giving the requisite notice of his intention to the Government and to the Board. Here again, the rating committee does not come into the picture for preventing the continued charging of the rates in contravention of the 3rd proviso and here we consider it impossible to contend that the jurisdiction of the civil court to grant a declaration and an injunction are affected by the provisions of S.therefore arrive at this position that notwithstanding the generality of the words in S.(1) (a) (i) referring to the failure on the part of the licensee in complying with the requirements of the "Sixth Schedule, there are some "failures in regard to which the jurisdiction of the civil court is it is clear notproviso casts an absolute obligation on the licensee not to exceed this limit. There is thus a statutory prohibition against the licensee of fixing a rate which would yield such excessive profit, and if he does so he would not be acting in terms of the VIth Schedule at all or by virtue of a power conferred by that Schedule and therefore he would be amenable to the jurisdiction of the court which would be competent to issue an injunction restraining him from charging that rate. No doubt, the proviso also adds that if he does so he would be failing to comply with the requirement of the main part of paragraph 1. It would therefore follow that in a case where in adjusting his rate the licensee fixes it so high as to contravene this proviso, it would be open to the aggrieved consumer to approach the Board or the State Government to appoint a rating committee. But from this circumstance we are not prepared to hold (a) that the action of the licensee in charging a prohibited rate is any the less and illegality not countenanced by the statute and (b) that where such an illegality is made out the jurisdiction of a civil court to afford relief is ousted. It is possible to hold, and we do not desire to express a final opinion on a point which is not directly involved in these appeals, that the jurisdiction of the court may be confined to granting a declaration as to the invalidity of the adjustment and injunction against the violation of the statutory prohibitions; and not to grant a refund. It is only necessary to add that the relief sought in these two suits was merely a declaration regarding the invalidity of the rates charged and an injunction restraining the appellant from continuing to charge them.60.We are, therefore, satisfied that the mere existence of S.does not by itself and without reference to the particular violation complained of by the licensee, bar the jurisdiction of a civil court and the argument in the extreme form presented to us by the learned | 1 | 6,591 | 6,417 | ### Instruction:
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the State Electricity Board and it refers to a letter. "No AMAL/BEL/C2; dated 7-8-1958" written by the appellant to the Board and the letter last mentioned, which is Ex. 60, is the notice by the appellant to the Board expressing its intention to revise the rates. It is quite clear, therefore, that notice had been given to the Board of the proposed enhancement. This point, it may be stated, does not seem to have been taken in the High Court.20. It was also said that the notice was bad as it did not state that the standing charge was being increased from Rs. 2/- to Rs. 2.69 per B.H.P. per month. This again is an unfounded contention for the standing charge had not been increased by the notice at all. Indeed the plaint itself in Paragraph 5 states that prior to November 1, 1958 the appellant had been levying standing charges at the rate of Rs. 2.69. So there was no enhancement of this charge by the notice and, hence no question of giving any notice of any enhancement of the standing charge arises.21. Lastly, it was said that in the notice to the consumers it was stated that the power supply would be restricted between certain hours but the notice to the government did not mention this restriction in the supply. The notice to the consumers no doubt stated that the revised unit charge would be in respect of restricted hours of supply but that does not make the contention of any substance. There was nothing in the notice to show that the supply would be restricted. Further it is neither alleged in the plaint nor does it appear from anything on the record, that there was in fact any restriction in the supply. That being so, the failure to give notice to the government of the restriction in the supply is wholly immaterial. I have not, further, been shown any provision under which notice to the government of a restriction in the supply of electricity is necessary. It is certainly not required by anything in Paragraph 1 in the Sixth Schedule to the Act of 1948.22. I am, therefore, of the opinion that there is no reason to hold that the appellant was not entitled to levy the charge mentioned in its notice of September 25, 1948.23. I come now to the standing charge of Rs. 2.69 per B.H.P. per month. As in the case of the other charge and for the same reasons. I am not concerned with any question as to its legality in respect of any period prior to the suit. It has to be remembered that there is no complaint that this rate had been increased, by the notice. Lastly, as already stated, a civil court cannot go into the question whether a charge is illegal inasmuch as it has been revised to an amount exceeding the limit mentioned in Paragraph 1 of the Sixth Schedule to the Act of 1948. The only ground on which this charge is questioned is put up in Paragraph 23 of the plaint in these words : "any standing charges along with the usual Unit Charges is against equity and law, it being double charge for the industry to pay for the enrichment of the defendants"; the legality of the standing charge is not challenged on any other ground. Now where a charge is permitted by a statute no question of its being inequitable can be raised in a court of law neither can the question whether the charge is in excess of the limit justified by the statute be canvassed in such a court. Therefore, the respondents cannot in these cases challenge the legality of the standing charge.24. What I have said so far disposes of the appeal in the suit concerning the rates charged for the supply of motive power. That appeal must therefore be allowed.25. The appeal in the suit with regard to the charges for lights and fans can be disposed of substantially on the grounds earlier discussed. The High Court also placed its decision in respect of this matter on the same ground on which it had disposed of the other matter. The only point made in this case is that the appellant had been wrongfully charging a rate in excess of the limit fixed by the order of December 30, 1942 by 0-06 np. per unit. On this basis a declaration that the excess charge was illegal was sought and also an injunction restraining the appellant from levying it. It will be observed that in this case there was no notice given by the appellant of any increase in the charge. No question of the charge being illegal by reason of any enhancement, therefore, arises. The only complaint is that the charge is illegal as it is in excess of the limit fixed by the government. As I have said, under Paragraphs I and II of the Sixth Schedule to the Act of 1948 a licensee can charge any amount so that his clear profit does not exceed his reasonable return and if he exceeds the limit he only exposes himself to the consequences mentioned in them and a consumer cannot go to a court of law for relief on the ground that the licensee had exceeded this limit. Therefore, the respondent cannot ask for any relief in a civil court on the basis that the appellant had exceed the limit. As in the other case, in this case also I am not concerned with the legality of any charge made prior to the date of the suit; the only question is the legality of the charge made since March 31, 1959. That question has to be decided under Act of 1948 as amended in 1956. It follows that in this case also the respondents can get no assistance from the decision in Babulal Chaganlal, ILR (1955) Bom 42 : (AIR 1955 Bom 182 ) even if that case was rightly decided.
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1 and the contention raised in that behalf by respondents must be rejected.It is undoubted that these provisions have laid down a specific procedure for violations by the licensee of the requirements of Sch. VI. There being no express bar to the jurisdiction of the Civil Court, we have to determine the scope and extent of the bar that could be implied from the existence of these provisions. One thing, however, is clear; the bar cannot extent beyond the scope and limits of the jurisdiction of the rating committee; or expressed in other words, the jurisdiction of the civil court could not be held to be excluded in respect of those matters which are no assigned by S.to the Rating Committee, or in regard to which the rating committee cannot afford the consumer relief against an infraction of a statutory provision by which he isis doubtless a serious argument which requires careful examination. In this context and in support of this submission stress was laid on the words "the licensee has failed to comply with any of the provisions of the Sixth Schedule occurring in S. 57, A (1) (a) (i) and it was urged that for any and every default of the licensee resort must be had to the Board or the Government and could not be had to the civil courts. But from these provisions it does not in our opinion, follow that the jurisdiction of a civil court is barred in respect of the infraction of every obligation cast on a licensee by Sch. VI. Broadly speaking, the utmost that could be urged would be that the bar to the jurisdiction of a civil court would bewith and be restricted to the powers of the rating committee and the reliefs which the committee could grant under S.few examples of breaches of Sch. VI which a licensee may commit and in regard to which a reference to the rating committee is not contemplated would make our meaning clear. The first proviso to paragraph 1 specifies that "such rates shall not be enhanced more than once in any year of account. Let us suppose that the licensee contravenes this prohibition and enhances the rate more than once. There is no provision in S.for the rating committee to control the licensee in the event of his transgressing a positive prohibition of this sort and, indeed, it would be most anomalous to say that the statute having made a provision that the rates shall not be enhanced more than once in a year, the consumer is left without a remedy if the Government does not choose to appoint a rating committee which, as we said earlier, has no power to afford redress to the affected consumer. In such a case it appears to us that by no principle of construction can the jurisdiction of a civil court to grant a declaration and an injunction be denied. It would also follow that if that rate is collected, the court could order a refund of the illegal collection. Take next the case where a licensee in contravention of the 3rd proviso enhances the rates for the supply of electricity without giving the requisite notice of his intention to the Government and to the Board. Here again, the rating committee does not come into the picture for preventing the continued charging of the rates in contravention of the 3rd proviso and here we consider it impossible to contend that the jurisdiction of the civil court to grant a declaration and an injunction are affected by the provisions of S.therefore arrive at this position that notwithstanding the generality of the words in S.(1) (a) (i) referring to the failure on the part of the licensee in complying with the requirements of the "Sixth Schedule, there are some "failures in regard to which the jurisdiction of the civil court is it is clear notproviso casts an absolute obligation on the licensee not to exceed this limit. There is thus a statutory prohibition against the licensee of fixing a rate which would yield such excessive profit, and if he does so he would not be acting in terms of the VIth Schedule at all or by virtue of a power conferred by that Schedule and therefore he would be amenable to the jurisdiction of the court which would be competent to issue an injunction restraining him from charging that rate. No doubt, the proviso also adds that if he does so he would be failing to comply with the requirement of the main part of paragraph 1. It would therefore follow that in a case where in adjusting his rate the licensee fixes it so high as to contravene this proviso, it would be open to the aggrieved consumer to approach the Board or the State Government to appoint a rating committee. But from this circumstance we are not prepared to hold (a) that the action of the licensee in charging a prohibited rate is any the less and illegality not countenanced by the statute and (b) that where such an illegality is made out the jurisdiction of a civil court to afford relief is ousted. It is possible to hold, and we do not desire to express a final opinion on a point which is not directly involved in these appeals, that the jurisdiction of the court may be confined to granting a declaration as to the invalidity of the adjustment and injunction against the violation of the statutory prohibitions; and not to grant a refund. It is only necessary to add that the relief sought in these two suits was merely a declaration regarding the invalidity of the rates charged and an injunction restraining the appellant from continuing to charge them.60.We are, therefore, satisfied that the mere existence of S.does not by itself and without reference to the particular violation complained of by the licensee, bar the jurisdiction of a civil court and the argument in the extreme form presented to us by the learned
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Federal Bank Ltd Vs. V.M. Jog Engineering Ltd. | from reimbursing the Negotiating Bank. These principles prima facie flow from Shientag, J.s judgment which has been followed both in England and by this Court, in several cases. Legal relation of a Negotiating Bank vis-a-vis the Issuing Bank : 62. The contract between the Issuing Bank and the paying or negotiating (intermediary) banker may partake of a dual nature. The relationship is mainly that of principle and agent, mandator and mandatory. In other that he may claim reimbursement for any payment he makes under the credit or the indemnity of an agent, the intermediary banker must obey strictly, the instructions he receives, for by acting on them, he accepts them and thus enters into contractual relations with the Issuing Bank. The instructions may take the form of an authority either to pay against documents or drafts accompanied by document, or to negotiate drafts drawn either on the Issuing Bank or on the buyer. The authority may be accompanied by instructions to the intermediary banker to confirm the credit, that is, to place himself in binding contractual relationship with the beneficiary. There is ordinarily no privity between the intermediary banker and the buyer. But the intermediary banker, though initially the agent of the Issuing Bank, may also act as principal in relation to him. (Pagets Law of Banking, 9th Ed., 1982 pp. 543, 544). 63. A.G. Davis in his `The Law Relating to Commercial Letters of Credit (2nd Ed.) (1954) (p. 92 et see) deals with the rights of a Negotiating Bank. These rights are partly based on the law relating to negotiable instruments and partly on the law applicable strictly to letters of credit. So far as the rights of the Negotiating Bank against the seller are concerned, his position will be that as in the case of a `bill of exchange as against the drawer. The author deals with its rights against the seller as a holder in due course unless the seller drew the bill `sans recourse. He also deals with the risks of the Negotiating Bank in cases of revocable credits. But so far as irrevocable credits are concerned, he says that the terms of the credit have to be looked into. Some terms indeed contain an undertaking by the Issuing Bank with the seller and purchasers for value of drafts on credits, to honour those drafts if, of course, the terms of the credit are complied with. He says : "But even in the absence of express words, a promise in favour of such third persons may be implied from the terms of the Letter of Credit and surrounding circumstances................... where an intermediary banker pays against documents other than those for which the credit calls and tenders them to the issuing banker, he may nevertheless be able to recover from the issuing banker if the latter delays in deciding whether he will repudiate or accept." 64. Roche, J. in Westminster Bank Ltd. v. Banca Nazionale di Credito, 1928(32) LL Rep. 306 at 312 said : "if parties keep documents which are sent (to) them....in consequence of some mandate which they themselves have issued, and keep them for an unreasonable time, that may amount to a ratification of what has been done as being done within their mandate." The issuing Bank, as principal may ratify the acts of its agent, the corresponding bank which is its agent and by doing so, relieve the corresponding bank of a liability it would otherwise have. 65 One ruling referred to by the learned counsel Shri S. Ganesh for the appellant is directly in point. In Virgo Steels v. Bank of Rajasthan, AIR 1998 Bom. 82 . In that case, the UCO Bank issued a Letter of Credit at request of Virgo Steel in favour of Western Mini-steel Ltd. It provided that documents under the credit could be negotiated through any Bank. The drawer drew the Bill of Exchange which was negotiated by the Bank of Rajasthan. On receipt of the said drafts, the Bank of Rajasthan wrote to the UCO Bank, sending the documents for its confirmation. The UCO Bank confirmed the signature of the partner as per their records and said that they could release payment directly to the Bank of Rajasthan. Subsequently, the UCO Bank found that Virgo Steels, in connivance with some officials of the Branch, got the L/Cs opened much in excess of the limit authorised by UCO Bank. The UCO Bank disowned liability to pay the Bank of Rajasthan on due date. M.B. Shah, J. (as he then was) speaking for the Bench, rejected the plea of UCO Bank and found it liable to the Bank of Rajasthan. It was held :"Whether the drawer or the acceptor or some officers of the UCO Bank committed fraud would hardly be a defence for non-payment of the amount due to the Bills of Exchanges negotiated by the Bank of Rajasthan, a third party."and that"UCO bank has never raised any contention that some officers of Bank of Rajasthan, which is altogether a third party, was involved in any alleged fraud or conspiracy."The Court relied upon a circular of the Reserve Bank of India dated 1.4.1992. UCO Bank was held bound by its own confirmation of the documents. We are in respectful agreement with the judgment.66. In view of the above reasons, this appeal is to be allowed.67. Sumarising, we hold that when the plaintiff buyer has no case that the appellant-Negotiating Bank had any knowledge of fraud, and when it took precaution in getting clearance for the document from the issuing Bank on 20.3.1998 and such clearance was given on 23.3.1998 by the latter, it was not open to the Issuing Bank to contend that on fresh scrutiny in May, 1998, it found that the documents were not in conformity with the letters of Credits or that the buyer had so informed them. Prima facie, the appellant was in the position of a holder in due course. Points 2 and 3 are decided in favour of the appellant. | 1[ds]62. The contract between the Issuing Bank and the paying or negotiating (intermediary) banker may partake of a dual nature. The relationship is mainly that of principle and agent, mandator and mandatory. In other that he may claim reimbursement for any payment he makes under the credit or the indemnity of an agent, the intermediary banker must obey strictly, the instructions he receives, for by acting on them, he accepts them and thus enters into contractual relations with the Issuing Bank. The instructions may take the form of an authority either to pay against documents or drafts accompanied by document, or to negotiate drafts drawn either on the Issuing Bank or on the buyer. The authority may be accompanied by instructions to the intermediary banker to confirm the credit, that is, to place himself in binding contractual relationship with the beneficiary. There is ordinarily no privity between the intermediary banker and the buyer. But the intermediary banker, though initially the agent of the Issuing Bank, may also act as principal in relation to him. (Pagets Law of Banking, 9th Ed., 1982 pp. 543,One ruling referred to by the learned counsel Shri S. Ganesh for the appellant is directly in point. In Virgo Steels v. Bank of Rajasthan, AIR 1998 Bom. 82 . In that case, the UCO Bank issued a Letter of Credit at request of Virgo Steel in favour of WesternLtd. It provided that documents under the credit could be negotiated through any Bank. The drawer drew the Bill of Exchange which was negotiated by the Bank of Rajasthan. On receipt of the said drafts, the Bank of Rajasthan wrote to the UCO Bank, sending the documents for its confirmation. The UCO Bank confirmed the signature of the partner as per their records and said that they could release payment directly to the Bank of Rajasthan. Subsequently, the UCO Bank found that Virgo Steels, in connivance with some officials of the Branch, got the L/Cs opened much in excess of the limit authorised by UCO Bank. The UCO Bank disowned liability to pay the Bank of Rajasthan on due date. M.B. Shah, J. (as he then was) speaking for the Bench, rejected the plea of UCO Bank and found it liable to the Bank of Rajasthan. It was held :"Whether the drawer or the acceptor or some officers of the UCO Bank committed fraud would hardly be a defence forof the amount due to the Bills of Exchanges negotiated by the Bank of Rajasthan, a third party."and that"UCO bank has never raised any contention that some officers of Bank of Rajasthan, which is altogether a third party, was involved in any alleged fraud or conspiracy."The Court relied upon a circular of the Reserve Bank of India dated 1.4.1992. UCO Bank was held bound by its own confirmation of the documents. We are in respectful agreement with the judgment.66. In view of the above reasons, this appeal is to be allowed.67. Sumarising, we hold that when the plaintiff buyer has no case that theBank had any knowledge of fraud, and when it took precaution in getting clearance for the document from the issuing Bank on 20.3.1998 and such clearance was given on 23.3.1998 by the latter, it was not open to the Issuing Bank to contend that on fresh scrutiny in May, 1998, it found that the documents were not in conformity with the letters of Credits or that the buyer had so informed them. Prima facie, the appellant was in the position of a holder in due course. Points 2 and 3 are decided in favour of the appellant. | 1 | 11,615 | 680 | ### 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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from reimbursing the Negotiating Bank. These principles prima facie flow from Shientag, J.s judgment which has been followed both in England and by this Court, in several cases. Legal relation of a Negotiating Bank vis-a-vis the Issuing Bank : 62. The contract between the Issuing Bank and the paying or negotiating (intermediary) banker may partake of a dual nature. The relationship is mainly that of principle and agent, mandator and mandatory. In other that he may claim reimbursement for any payment he makes under the credit or the indemnity of an agent, the intermediary banker must obey strictly, the instructions he receives, for by acting on them, he accepts them and thus enters into contractual relations with the Issuing Bank. The instructions may take the form of an authority either to pay against documents or drafts accompanied by document, or to negotiate drafts drawn either on the Issuing Bank or on the buyer. The authority may be accompanied by instructions to the intermediary banker to confirm the credit, that is, to place himself in binding contractual relationship with the beneficiary. There is ordinarily no privity between the intermediary banker and the buyer. But the intermediary banker, though initially the agent of the Issuing Bank, may also act as principal in relation to him. (Pagets Law of Banking, 9th Ed., 1982 pp. 543, 544). 63. A.G. Davis in his `The Law Relating to Commercial Letters of Credit (2nd Ed.) (1954) (p. 92 et see) deals with the rights of a Negotiating Bank. These rights are partly based on the law relating to negotiable instruments and partly on the law applicable strictly to letters of credit. So far as the rights of the Negotiating Bank against the seller are concerned, his position will be that as in the case of a `bill of exchange as against the drawer. The author deals with its rights against the seller as a holder in due course unless the seller drew the bill `sans recourse. He also deals with the risks of the Negotiating Bank in cases of revocable credits. But so far as irrevocable credits are concerned, he says that the terms of the credit have to be looked into. Some terms indeed contain an undertaking by the Issuing Bank with the seller and purchasers for value of drafts on credits, to honour those drafts if, of course, the terms of the credit are complied with. He says : "But even in the absence of express words, a promise in favour of such third persons may be implied from the terms of the Letter of Credit and surrounding circumstances................... where an intermediary banker pays against documents other than those for which the credit calls and tenders them to the issuing banker, he may nevertheless be able to recover from the issuing banker if the latter delays in deciding whether he will repudiate or accept." 64. Roche, J. in Westminster Bank Ltd. v. Banca Nazionale di Credito, 1928(32) LL Rep. 306 at 312 said : "if parties keep documents which are sent (to) them....in consequence of some mandate which they themselves have issued, and keep them for an unreasonable time, that may amount to a ratification of what has been done as being done within their mandate." The issuing Bank, as principal may ratify the acts of its agent, the corresponding bank which is its agent and by doing so, relieve the corresponding bank of a liability it would otherwise have. 65 One ruling referred to by the learned counsel Shri S. Ganesh for the appellant is directly in point. In Virgo Steels v. Bank of Rajasthan, AIR 1998 Bom. 82 . In that case, the UCO Bank issued a Letter of Credit at request of Virgo Steel in favour of Western Mini-steel Ltd. It provided that documents under the credit could be negotiated through any Bank. The drawer drew the Bill of Exchange which was negotiated by the Bank of Rajasthan. On receipt of the said drafts, the Bank of Rajasthan wrote to the UCO Bank, sending the documents for its confirmation. The UCO Bank confirmed the signature of the partner as per their records and said that they could release payment directly to the Bank of Rajasthan. Subsequently, the UCO Bank found that Virgo Steels, in connivance with some officials of the Branch, got the L/Cs opened much in excess of the limit authorised by UCO Bank. The UCO Bank disowned liability to pay the Bank of Rajasthan on due date. M.B. Shah, J. (as he then was) speaking for the Bench, rejected the plea of UCO Bank and found it liable to the Bank of Rajasthan. It was held :"Whether the drawer or the acceptor or some officers of the UCO Bank committed fraud would hardly be a defence for non-payment of the amount due to the Bills of Exchanges negotiated by the Bank of Rajasthan, a third party."and that"UCO bank has never raised any contention that some officers of Bank of Rajasthan, which is altogether a third party, was involved in any alleged fraud or conspiracy."The Court relied upon a circular of the Reserve Bank of India dated 1.4.1992. UCO Bank was held bound by its own confirmation of the documents. We are in respectful agreement with the judgment.66. In view of the above reasons, this appeal is to be allowed.67. Sumarising, we hold that when the plaintiff buyer has no case that the appellant-Negotiating Bank had any knowledge of fraud, and when it took precaution in getting clearance for the document from the issuing Bank on 20.3.1998 and such clearance was given on 23.3.1998 by the latter, it was not open to the Issuing Bank to contend that on fresh scrutiny in May, 1998, it found that the documents were not in conformity with the letters of Credits or that the buyer had so informed them. Prima facie, the appellant was in the position of a holder in due course. Points 2 and 3 are decided in favour of the appellant.
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### Explanation:
62. The contract between the Issuing Bank and the paying or negotiating (intermediary) banker may partake of a dual nature. The relationship is mainly that of principle and agent, mandator and mandatory. In other that he may claim reimbursement for any payment he makes under the credit or the indemnity of an agent, the intermediary banker must obey strictly, the instructions he receives, for by acting on them, he accepts them and thus enters into contractual relations with the Issuing Bank. The instructions may take the form of an authority either to pay against documents or drafts accompanied by document, or to negotiate drafts drawn either on the Issuing Bank or on the buyer. The authority may be accompanied by instructions to the intermediary banker to confirm the credit, that is, to place himself in binding contractual relationship with the beneficiary. There is ordinarily no privity between the intermediary banker and the buyer. But the intermediary banker, though initially the agent of the Issuing Bank, may also act as principal in relation to him. (Pagets Law of Banking, 9th Ed., 1982 pp. 543,One ruling referred to by the learned counsel Shri S. Ganesh for the appellant is directly in point. In Virgo Steels v. Bank of Rajasthan, AIR 1998 Bom. 82 . In that case, the UCO Bank issued a Letter of Credit at request of Virgo Steel in favour of WesternLtd. It provided that documents under the credit could be negotiated through any Bank. The drawer drew the Bill of Exchange which was negotiated by the Bank of Rajasthan. On receipt of the said drafts, the Bank of Rajasthan wrote to the UCO Bank, sending the documents for its confirmation. The UCO Bank confirmed the signature of the partner as per their records and said that they could release payment directly to the Bank of Rajasthan. Subsequently, the UCO Bank found that Virgo Steels, in connivance with some officials of the Branch, got the L/Cs opened much in excess of the limit authorised by UCO Bank. The UCO Bank disowned liability to pay the Bank of Rajasthan on due date. M.B. Shah, J. (as he then was) speaking for the Bench, rejected the plea of UCO Bank and found it liable to the Bank of Rajasthan. It was held :"Whether the drawer or the acceptor or some officers of the UCO Bank committed fraud would hardly be a defence forof the amount due to the Bills of Exchanges negotiated by the Bank of Rajasthan, a third party."and that"UCO bank has never raised any contention that some officers of Bank of Rajasthan, which is altogether a third party, was involved in any alleged fraud or conspiracy."The Court relied upon a circular of the Reserve Bank of India dated 1.4.1992. UCO Bank was held bound by its own confirmation of the documents. We are in respectful agreement with the judgment.66. In view of the above reasons, this appeal is to be allowed.67. Sumarising, we hold that when the plaintiff buyer has no case that theBank had any knowledge of fraud, and when it took precaution in getting clearance for the document from the issuing Bank on 20.3.1998 and such clearance was given on 23.3.1998 by the latter, it was not open to the Issuing Bank to contend that on fresh scrutiny in May, 1998, it found that the documents were not in conformity with the letters of Credits or that the buyer had so informed them. Prima facie, the appellant was in the position of a holder in due course. Points 2 and 3 are decided in favour of the appellant.
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Muniappan Vs. State of Madras | that it was proper to take the thumb impression on the statement as it had been made. The Sub-Inspector should have left the document as it was, without taking the thumb mark of the dead man, but we do not feel compelled to hold that he did so out of any improper motive, inasmuch as he had noted that the man was dead before the thumb impression was taken. That also was his testimony in court, and that of the attesting witnesses. The fact, however, remains that the dying declaration was interrupted by death ensuing suddenly. The question is whether this dying declaration is admissible in evidence.5. The learned counsel for the appellant has relied on a case of the Privy Council from Jamaica reported in Cyril Waugh v. The King, 1950 AC 203. In that case, one Phillip Newby was shot and he made a dying declaration which was taken down but which was not complete because Newby suddenly fell into a coma from which he never recovered. The Privy Council ruled out that dying declaration on the ground that being incomplete it could not be taken into account after ignoring the last sentence which was incomplete because in the middle of it Newby fell into a coma and died. That dying declaration, if examined clearly shows that Newby had not charged any person by name but had described his assailant as "a man". In the sentence which was incomplete in his statement Newby had begun to say "The man had an old grudge for me simply because . . .." It is quite clear that if that sentence had been completed a clue would have been furnished as to the identity of the assailant by the facts about the old grudge which Newby wanted to disclose. The dying declaration, therefore, was an incomplete statement and in so far as it went, had no value unless it was completed by some other evidence which of course would not have been a part of Newbys statement. The reason for excluding that dying declaration was, therefore, quite clear, and if the present dying declaration can be said to be of a similar character, then the argument of the counsel for the appellant must prevail.6. The dying declaration in the present case was as follows:-"Sir,This day 24th January, 1960 in the noon at 12-30 Muniappan, son of Kola Goundan of Kannankurichi stabbed me in my body with knife.Soon after the said these words, his speech stopped. His life was gone.(Left thumb impression of) Elumalai.Witness :-1. (Signed in Tamil) Muthusami Udayar.2. (Signed) K. R. Perumal.3. (Signed in Tamil) C. Kannan.4. (Left thumb impression of) Kandasami24th January, 1960(Signed) S. A.Amir,Sub-Inspector."Here, the accusation against the appellant was complete, and there is nothing to show that Elumalai wished to say anything more or that he had anything more to add. In so far as the dying declaration goes, it is a complete statement, and makes a very clear accusation against the appellant. If this dying declaration is taken into account, then it hardly needs corroboration in view of the decision of this Court in Khushal Rao v. State of Bombay, 1958 SCR 552 : (AIR 1958 SC 22 ).The Privy Council case, therefore, is clearly distinguishable on facts and does not apply to the dying declaration with which we have to deal. The Privy Council case was considered by this Court in Abdul Sattar v. Mysore State, (S) AIR 1956 SC 168 where also the dying declaration was incomplete but was quite categoric in character and definitely indicated that it was the accused in that case who had shot the deceased. The dying declaration was, therefore, acted upon. The learned counsel for the appellant attempted to distinguish Abdul Sattars case, (S) AIR 1956 SC 168 on the ground that in that case there was corroboration of the dying declaration and contended that an incomplete dying declaration, if categoric in character, may be acted upon if corroborated but not if not so corroborated. In our opinion, corroboration would not always be necessary if the dying declaration is complete in its accusation and there is nothing to show that the maker of the statement had anything further to add. That is the case here. In this case, however, there is some other evidence to incriminate the accused. The injuries were caused with a knife and a knife was found at some distance from the scene of occurrence on information furnished to the police by the accused. That knife was found to be stained with human blood and the accused had in his possession a sheath which was identified as longing to the knife by the shop-keeper who had the day previous sold the knife and the sheath to the appellant Muniappan. There is also the conduct of the appellant in surrendering himself to the police at 12-40 p.m. that is to say, within ten minutes of the occurrence. The appellant had an injury on his thumb which he apparently got in attempting to stab Elumalai. The injury was situated on the thumb of his left hand on the lateral side and must have been caused when he struck Elumalai repeatedly holding him with his left hand and wielding the weapon with his right hand. There is also evidence of motive in the shape of a quarrel which had taken place only two days previously and in respect of which the rival parties had made their respective reports to the police. There was also corroboration in the shape of a dying declaration made by Elumalai to the first prosecution witness Muthuswami when he reached the spot after Elumalai had raised a cry for help.7. In view of all these circumstances we are satisfied that the evidence in this case is sufficient to warrant the conviction of the appellant on a charge of murder. The dying declaration is, in our opinion, categoric in character and unmistakably accuses the appellant of the crime and we have no hesitation in accepting it. | 0[ds]In our opinion, corroboration would not always be necessary if the dying declaration is complete in its accusation and there is nothing to show that the maker of the statement had anything further to add. That is the case here. In this case, however, there is some other evidence to incriminate the accused. The injuries were caused with a knife and a knife was found at some distance from the scene of occurrence on information furnished to the police by the accused. That knife was found to be stained with human blood and the accused had in his possession a sheath which was identified as longing to the knife by the shop-keeper who had the day previous sold the knife and the sheath to the appellant Muniappan. There is also the conduct of the appellant in surrendering himself to the police at 12-40 p.m. that is to say, within ten minutes of the occurrence. The appellant had an injury on his thumb which he apparently got in attempting to stab Elumalai. The injury was situated on the thumb of his left hand on the lateral side and must have been caused when he struck Elumalai repeatedly holding him with his left hand and wielding the weapon with his right hand. There is also evidence of motive in the shape of a quarrel which had taken place only two days previously and in respect of which the rival parties had made their respective reports to the police. There was also corroboration in the shape of a dying declaration made by Elumalai to the first prosecution witness Muthuswami when he reached the spot after Elumalai had raised a cry for help.7. In view of all these circumstances we are satisfied that the evidence in this case is sufficient to warrant the conviction of the appellant on a charge of murder. The dying declaration is, in our opinion, categoric in character and unmistakably accuses the appellant of the crime and we have no hesitation in accepting it. | 0 | 1,975 | 356 | ### 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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that it was proper to take the thumb impression on the statement as it had been made. The Sub-Inspector should have left the document as it was, without taking the thumb mark of the dead man, but we do not feel compelled to hold that he did so out of any improper motive, inasmuch as he had noted that the man was dead before the thumb impression was taken. That also was his testimony in court, and that of the attesting witnesses. The fact, however, remains that the dying declaration was interrupted by death ensuing suddenly. The question is whether this dying declaration is admissible in evidence.5. The learned counsel for the appellant has relied on a case of the Privy Council from Jamaica reported in Cyril Waugh v. The King, 1950 AC 203. In that case, one Phillip Newby was shot and he made a dying declaration which was taken down but which was not complete because Newby suddenly fell into a coma from which he never recovered. The Privy Council ruled out that dying declaration on the ground that being incomplete it could not be taken into account after ignoring the last sentence which was incomplete because in the middle of it Newby fell into a coma and died. That dying declaration, if examined clearly shows that Newby had not charged any person by name but had described his assailant as "a man". In the sentence which was incomplete in his statement Newby had begun to say "The man had an old grudge for me simply because . . .." It is quite clear that if that sentence had been completed a clue would have been furnished as to the identity of the assailant by the facts about the old grudge which Newby wanted to disclose. The dying declaration, therefore, was an incomplete statement and in so far as it went, had no value unless it was completed by some other evidence which of course would not have been a part of Newbys statement. The reason for excluding that dying declaration was, therefore, quite clear, and if the present dying declaration can be said to be of a similar character, then the argument of the counsel for the appellant must prevail.6. The dying declaration in the present case was as follows:-"Sir,This day 24th January, 1960 in the noon at 12-30 Muniappan, son of Kola Goundan of Kannankurichi stabbed me in my body with knife.Soon after the said these words, his speech stopped. His life was gone.(Left thumb impression of) Elumalai.Witness :-1. (Signed in Tamil) Muthusami Udayar.2. (Signed) K. R. Perumal.3. (Signed in Tamil) C. Kannan.4. (Left thumb impression of) Kandasami24th January, 1960(Signed) S. A.Amir,Sub-Inspector."Here, the accusation against the appellant was complete, and there is nothing to show that Elumalai wished to say anything more or that he had anything more to add. In so far as the dying declaration goes, it is a complete statement, and makes a very clear accusation against the appellant. If this dying declaration is taken into account, then it hardly needs corroboration in view of the decision of this Court in Khushal Rao v. State of Bombay, 1958 SCR 552 : (AIR 1958 SC 22 ).The Privy Council case, therefore, is clearly distinguishable on facts and does not apply to the dying declaration with which we have to deal. The Privy Council case was considered by this Court in Abdul Sattar v. Mysore State, (S) AIR 1956 SC 168 where also the dying declaration was incomplete but was quite categoric in character and definitely indicated that it was the accused in that case who had shot the deceased. The dying declaration was, therefore, acted upon. The learned counsel for the appellant attempted to distinguish Abdul Sattars case, (S) AIR 1956 SC 168 on the ground that in that case there was corroboration of the dying declaration and contended that an incomplete dying declaration, if categoric in character, may be acted upon if corroborated but not if not so corroborated. In our opinion, corroboration would not always be necessary if the dying declaration is complete in its accusation and there is nothing to show that the maker of the statement had anything further to add. That is the case here. In this case, however, there is some other evidence to incriminate the accused. The injuries were caused with a knife and a knife was found at some distance from the scene of occurrence on information furnished to the police by the accused. That knife was found to be stained with human blood and the accused had in his possession a sheath which was identified as longing to the knife by the shop-keeper who had the day previous sold the knife and the sheath to the appellant Muniappan. There is also the conduct of the appellant in surrendering himself to the police at 12-40 p.m. that is to say, within ten minutes of the occurrence. The appellant had an injury on his thumb which he apparently got in attempting to stab Elumalai. The injury was situated on the thumb of his left hand on the lateral side and must have been caused when he struck Elumalai repeatedly holding him with his left hand and wielding the weapon with his right hand. There is also evidence of motive in the shape of a quarrel which had taken place only two days previously and in respect of which the rival parties had made their respective reports to the police. There was also corroboration in the shape of a dying declaration made by Elumalai to the first prosecution witness Muthuswami when he reached the spot after Elumalai had raised a cry for help.7. In view of all these circumstances we are satisfied that the evidence in this case is sufficient to warrant the conviction of the appellant on a charge of murder. The dying declaration is, in our opinion, categoric in character and unmistakably accuses the appellant of the crime and we have no hesitation in accepting it.
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### Explanation:
In our opinion, corroboration would not always be necessary if the dying declaration is complete in its accusation and there is nothing to show that the maker of the statement had anything further to add. That is the case here. In this case, however, there is some other evidence to incriminate the accused. The injuries were caused with a knife and a knife was found at some distance from the scene of occurrence on information furnished to the police by the accused. That knife was found to be stained with human blood and the accused had in his possession a sheath which was identified as longing to the knife by the shop-keeper who had the day previous sold the knife and the sheath to the appellant Muniappan. There is also the conduct of the appellant in surrendering himself to the police at 12-40 p.m. that is to say, within ten minutes of the occurrence. The appellant had an injury on his thumb which he apparently got in attempting to stab Elumalai. The injury was situated on the thumb of his left hand on the lateral side and must have been caused when he struck Elumalai repeatedly holding him with his left hand and wielding the weapon with his right hand. There is also evidence of motive in the shape of a quarrel which had taken place only two days previously and in respect of which the rival parties had made their respective reports to the police. There was also corroboration in the shape of a dying declaration made by Elumalai to the first prosecution witness Muthuswami when he reached the spot after Elumalai had raised a cry for help.7. In view of all these circumstances we are satisfied that the evidence in this case is sufficient to warrant the conviction of the appellant on a charge of murder. The dying declaration is, in our opinion, categoric in character and unmistakably accuses the appellant of the crime and we have no hesitation in accepting it.
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K. Venkamma Vs. Govt. of Andhra Pradesh and Others | covers routes which continue beyond the State and connect various points in the State of Mysore with those in the other State it does not make the scheme one connected with inter-State Route. It is sought to be argued from this that even if Bellary-Chintakunta route which is shown as item 34 in Bellary Scheme has been nationalised it does not make the scheme one connected with inter-State route. Stress has been laid on the example given that the Grand Trunk Road runs from Calcutta to Amritsar and passes through many Sates and any portion of it within a State can be a route for purposes of stage carriage but that would not make such a route part of an inter-State route even though it lies on the road which runs through many States."6. The above argument can possibly have no validity so far as the present case is concerned. The scheme which was under consideration in the decision relied upon was in respect of an intra-state route. It appears to have been argued that as the scheme was concerned with an inter-state route the approval of the Central Government was necessary as required under the proviso to Section 63D(3) of the Act. This Court held that since the termini were within the State of Mysore the scheme did not deal with an inter-state route at all and no question arose of the applicability of the proviso to s. 68D(3). In the present case there is no scheme of national isation relating to the inter-state route from Bellary to Manthralaya. The Bellary Scheme is confined to the intra-state routes, one of those being the Bellary-Chintakunta route. It may be that that portion overlaps the inter state route from Bellary to Manthralaya but so long as it is an intra-state route it could be nationalised by the State of Mysore under the provisions of s. 68D."No further comment is necessary.7. We are inclined to the view that the route, passing, as it does through part of Tamil Nadu, is inter-state What is the effect of this finding over the scheme of nationalisation ? Wholly invalidatory ? o r else, what ? The proviso to Section 68D(3) i.e. Central Government approval has not been complied with and so qua inter-state route the nationalisation does not become effective. Even so, two factors can together salvage this nationalisation scheme.8. There can be no doubt that the scheme notified by one State will, even in the case of an inter-state route, operate to the extent it lies within that State. Its extraterritorial effect depends on securing of prior Central approval under the proviso to Section 68D(3). That being absent, the permit granted in one State may still be valid in another State if the condition specified in the 2nd proviso to Section 63(1) is fulfilled, We may as well extract Section 63 (1 ) to that extent relevant."63. Validation of permits for use outside region in which granted--(1) Except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region , unless the permit has been counter-signed by the Regional Transport Authority of that other region and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned:x x x..... Provided further that where both the starting point and the terminal point of a route are situate within the same State, but par t of such route lies in any other State and the length of such part does not exceed sixteen kilometres, the permit shall be valid in other State in respect of that part of the route which is in that other State notwithstanding that such permit has not been counter-signed by the State Transport Authority or the Regional Transport Authority of that other State."The portion of the route falling outside Andhra Pradesh (both termini being within that State) is admittedly less than 16 kin. and so no question of counter-signature by the State Transport Authority or the Regional Transport Authority of Tamil Nadu State arises. The conclusion follows that the portions of the inter-state route which fall within Andhra Pradesh stand nationalised, and consequently excludes private operators. But that strip of the inter-state route which falls within Tamil Nadu cannot be taken to have been nationalised to the exclusion of private operators although the Andhra Pradesh State Transport buses could ply on that strip also in view of the 2nd proviso to Section 63 (1) of the M.V. Act."9. We may point out that section 20 of the Road Transport Corporations Act (a Central Act) provides for extension of the operation of the road transport service of a corporation of one State to areas within another State. We are not directly concerned with such a scheme as is contemplated by that provision since passage over a neighbouring State if the length of such intersection does not exceed 16 km. is saved by the 2nd proviso to Section 63(1) of the M.V. Act. We, therefore, reach the conclusion that (a) the route Nellore-Ramapuram is an interstate route; (b) the scheme of nationalisation is operative even in the absence of the previous approval of the Central Government, so far as the portions which fall within Andhra Pradesh are concerned; and (c) the nationalisation cannot become effective over the tiny strip in Tamil Nadu and private operators may still be permitted to ply their services over that strip by the concerned authority within Tamil Nadu State; but (d) the Andhra Pradesh Sate Transport Corporation may ply its buses over the Tamil Nadu enclave even without counter-signature exemption having been granted in that behalf by the 2nd proviso to Section 63(1) of the M.V. Act.10. In this view, the appeal must substantially fail except to the extent of the little modification we have indicated, which does not profit the appellant. | 0[ds]The facts and discussion bear out abundantly that there is nothing in the ruling to suggest that even if a route traverses territory of another State it is none-the-less an intra-State route if the points of beginning and ending fall within one State. It is a fallacy so to construe that decision. What is repelled in that case is the contention that if a high-way r un through many States, any portion of that high-way which is picked out for running a bus service as a route, should also be deemed to be inter-state for the only reason that such a route (though its entire length f alls within a single State) overlaps a road which crosses many States. The very definition of route in Section 2(28-A) is sufficient to extinguish that argument and this Court rightly, if we may so with respect, rejected it. We cannot confuse between road and route. If the whole of the route lies within a single State it is intra-state and not inter-state, even though the road over which the route lies runs beyond the borders of t hat single State as national highwayscan be no doubt that the scheme notified by one State will, even in the case of an inter-state route, operate to the extent it lies within that State. Its extraterritorial effect depends on securing of prior Central approval under the proviso to Section 68D(3). That being absent, the permit granted in one State may still be valid in another State if the condition specified in the 2nd proviso to Section 63(1) ismay point out that section 20 of the Road Transport Corporations Act (a Central Act) provides for extension of the operation of the road transport service of a corporation of one State to areas within another State. We are not directly concerned with such a scheme as is contemplated by that provision since passage over a neighbouring State if the length of such intersection does not exceed 16 km. is saved by the 2nd proviso to Section 63(1) of the M.V. Act. We, therefore, reach the conclusion that (a) the route Nellore-Ramapuram is an interstate route; (b) the scheme of nationalisation is operative even in the absence of the previous approval of the Central Government, so far as the portions which fall within Andhra Pradesh are concerned; and (c) the nationalisation cannot become effective over the tiny strip in Tamil Nadu and private operators may still be permitted to ply their services over that strip by the concerned authority within Tamil Nadu State; but (d) the Andhra Pradesh Sate Transport Corporation may ply its buses over the Tamil Nadu enclave even without counter-signature exemption having been granted in that behalf by the 2nd proviso to Section 63(1) of the M.V. Act.In this view, the appeal must substantially fail except to the extent of the little modification we have indicated, which does not profit thethe present case there is no scheme of national isation relating to theroute from Bellary to Manthralaya. The Bellary Scheme is confined to theroutes, one of those being theroute. It may be that that portion overlaps the inter state route from Bellary to Manthralaya but so long as it is anroute it could be nationalised by the State of Mysore under the provisions of s. 68D."No further comment is necessary. | 0 | 2,620 | 623 | ### 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:
covers routes which continue beyond the State and connect various points in the State of Mysore with those in the other State it does not make the scheme one connected with inter-State Route. It is sought to be argued from this that even if Bellary-Chintakunta route which is shown as item 34 in Bellary Scheme has been nationalised it does not make the scheme one connected with inter-State route. Stress has been laid on the example given that the Grand Trunk Road runs from Calcutta to Amritsar and passes through many Sates and any portion of it within a State can be a route for purposes of stage carriage but that would not make such a route part of an inter-State route even though it lies on the road which runs through many States."6. The above argument can possibly have no validity so far as the present case is concerned. The scheme which was under consideration in the decision relied upon was in respect of an intra-state route. It appears to have been argued that as the scheme was concerned with an inter-state route the approval of the Central Government was necessary as required under the proviso to Section 63D(3) of the Act. This Court held that since the termini were within the State of Mysore the scheme did not deal with an inter-state route at all and no question arose of the applicability of the proviso to s. 68D(3). In the present case there is no scheme of national isation relating to the inter-state route from Bellary to Manthralaya. The Bellary Scheme is confined to the intra-state routes, one of those being the Bellary-Chintakunta route. It may be that that portion overlaps the inter state route from Bellary to Manthralaya but so long as it is an intra-state route it could be nationalised by the State of Mysore under the provisions of s. 68D."No further comment is necessary.7. We are inclined to the view that the route, passing, as it does through part of Tamil Nadu, is inter-state What is the effect of this finding over the scheme of nationalisation ? Wholly invalidatory ? o r else, what ? The proviso to Section 68D(3) i.e. Central Government approval has not been complied with and so qua inter-state route the nationalisation does not become effective. Even so, two factors can together salvage this nationalisation scheme.8. There can be no doubt that the scheme notified by one State will, even in the case of an inter-state route, operate to the extent it lies within that State. Its extraterritorial effect depends on securing of prior Central approval under the proviso to Section 68D(3). That being absent, the permit granted in one State may still be valid in another State if the condition specified in the 2nd proviso to Section 63(1) is fulfilled, We may as well extract Section 63 (1 ) to that extent relevant."63. Validation of permits for use outside region in which granted--(1) Except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region , unless the permit has been counter-signed by the Regional Transport Authority of that other region and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned:x x x..... Provided further that where both the starting point and the terminal point of a route are situate within the same State, but par t of such route lies in any other State and the length of such part does not exceed sixteen kilometres, the permit shall be valid in other State in respect of that part of the route which is in that other State notwithstanding that such permit has not been counter-signed by the State Transport Authority or the Regional Transport Authority of that other State."The portion of the route falling outside Andhra Pradesh (both termini being within that State) is admittedly less than 16 kin. and so no question of counter-signature by the State Transport Authority or the Regional Transport Authority of Tamil Nadu State arises. The conclusion follows that the portions of the inter-state route which fall within Andhra Pradesh stand nationalised, and consequently excludes private operators. But that strip of the inter-state route which falls within Tamil Nadu cannot be taken to have been nationalised to the exclusion of private operators although the Andhra Pradesh State Transport buses could ply on that strip also in view of the 2nd proviso to Section 63 (1) of the M.V. Act."9. We may point out that section 20 of the Road Transport Corporations Act (a Central Act) provides for extension of the operation of the road transport service of a corporation of one State to areas within another State. We are not directly concerned with such a scheme as is contemplated by that provision since passage over a neighbouring State if the length of such intersection does not exceed 16 km. is saved by the 2nd proviso to Section 63(1) of the M.V. Act. We, therefore, reach the conclusion that (a) the route Nellore-Ramapuram is an interstate route; (b) the scheme of nationalisation is operative even in the absence of the previous approval of the Central Government, so far as the portions which fall within Andhra Pradesh are concerned; and (c) the nationalisation cannot become effective over the tiny strip in Tamil Nadu and private operators may still be permitted to ply their services over that strip by the concerned authority within Tamil Nadu State; but (d) the Andhra Pradesh Sate Transport Corporation may ply its buses over the Tamil Nadu enclave even without counter-signature exemption having been granted in that behalf by the 2nd proviso to Section 63(1) of the M.V. Act.10. In this view, the appeal must substantially fail except to the extent of the little modification we have indicated, which does not profit the appellant.
### Response:
0
### Explanation:
The facts and discussion bear out abundantly that there is nothing in the ruling to suggest that even if a route traverses territory of another State it is none-the-less an intra-State route if the points of beginning and ending fall within one State. It is a fallacy so to construe that decision. What is repelled in that case is the contention that if a high-way r un through many States, any portion of that high-way which is picked out for running a bus service as a route, should also be deemed to be inter-state for the only reason that such a route (though its entire length f alls within a single State) overlaps a road which crosses many States. The very definition of route in Section 2(28-A) is sufficient to extinguish that argument and this Court rightly, if we may so with respect, rejected it. We cannot confuse between road and route. If the whole of the route lies within a single State it is intra-state and not inter-state, even though the road over which the route lies runs beyond the borders of t hat single State as national highwayscan be no doubt that the scheme notified by one State will, even in the case of an inter-state route, operate to the extent it lies within that State. Its extraterritorial effect depends on securing of prior Central approval under the proviso to Section 68D(3). That being absent, the permit granted in one State may still be valid in another State if the condition specified in the 2nd proviso to Section 63(1) ismay point out that section 20 of the Road Transport Corporations Act (a Central Act) provides for extension of the operation of the road transport service of a corporation of one State to areas within another State. We are not directly concerned with such a scheme as is contemplated by that provision since passage over a neighbouring State if the length of such intersection does not exceed 16 km. is saved by the 2nd proviso to Section 63(1) of the M.V. Act. We, therefore, reach the conclusion that (a) the route Nellore-Ramapuram is an interstate route; (b) the scheme of nationalisation is operative even in the absence of the previous approval of the Central Government, so far as the portions which fall within Andhra Pradesh are concerned; and (c) the nationalisation cannot become effective over the tiny strip in Tamil Nadu and private operators may still be permitted to ply their services over that strip by the concerned authority within Tamil Nadu State; but (d) the Andhra Pradesh Sate Transport Corporation may ply its buses over the Tamil Nadu enclave even without counter-signature exemption having been granted in that behalf by the 2nd proviso to Section 63(1) of the M.V. Act.In this view, the appeal must substantially fail except to the extent of the little modification we have indicated, which does not profit thethe present case there is no scheme of national isation relating to theroute from Bellary to Manthralaya. The Bellary Scheme is confined to theroutes, one of those being theroute. It may be that that portion overlaps the inter state route from Bellary to Manthralaya but so long as it is anroute it could be nationalised by the State of Mysore under the provisions of s. 68D."No further comment is necessary.
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Office Liquidator, Gujarat State Textile Corpn. Ltd Vs. Parmanand Maneklal Kajiwala & Others | 1. Leave granted.2. The question which is to be decided in this case relates to the interpretation of S.11(3) of the Gujarat Closed Textile Undertakings (Nationalisation) Act, 1986 (hereinafter referred to as "the Act"). By this Act, the appellant before us took over the management and assets of several textile undertakings which were closed. S.11 deals with the relationship of the appellant with the employees of the taken over undertakings.3. Respondent 1 who is the employee in this particular case, had been dismissed in 1983. The dismissal was challenged before the Labour Court. The Labour Court by an award dated 3-1-1986 set aside the order of dismissal and directed that the respondent should be reinstated with all consequential benefits.4. The mill which had been closed in 1984, was taken over by the appellant under the Act on 8-11-1985. It is not in dispute that the appellant has been able to restart the mills subsequently. The respondent claims that he was not only entitled to the benefits of reinstatement in the sense of arrears of salary from the erstwhile company from the date of dismissal up to the date of taking over i.e. 8-11-1985, but was also entitled to reemployment with the appellant for the period 15-1-1987 to 27-8-1989. As far as the first claim is concerned that is not controverted by the appellant. As far as the second part of the claim is concerned, it was the respondents case before the High Court that the appellant had reappointed persons who were junior to the respondent workman in service on 15-1-1987. It is therefore, the respondents prayer that he should have been considered for appointment and that he was entitled to wages until the date of his superannuation i.e. 27-8-1989. This was accepted by the High Court on the ground that the appellant had not denied in its affidavit that it had in fact reappointed the persons who were junior to the respondent without considering the respondents case. 5. The High Court appears to have misdirected itself. The issue was not one of fact but of law. The question was whether under S.11(3) of the Act, the respondent workman could be deemed to have continued in service or had any right under the Act to be reemployed. 6. S.11(3) provides as follows: "11. (3)(a) The services of every person employed by the owner before the appointed day shall stand terminated --(i) on the designated date if such person is not employed before that date by the Corporation under sub-s.(1) or (2), and(ii) on the date of his appointment if such person is employed before the designated date by the Corporation under sub-s.(1) or (2).(b) A person whose services stand terminated under sub clause (i) of clause (a) shall not be entitled to claim employment in the Corporation as of right." 7. Sub-s.(4) of S.11 provides for the payment of gratuity and / or compensation to the workman whose services so stood terminated on or before the appointed date i.e. 8-11-1985. 8. The sub-section clearly provides that the services of every person employed by the erstwhile company before the appointed date would stand terminated on the designated date i.e. 8-11-1985. By the award passed by the Labour Court, the respondent workman was no doubt given notional reinstatement as if he had continued in service without the order of termination having been passed. That being so the workman would be treated on par with such of the other employees who had continued in service with the erstwhile owner up to the designated date. Along with other workmen, the respondents services would also stand terminated and he would be entitled then to the compensation as provided under sub-s.(4) of S.11. None of the provisions of the Act direct that the appellant would be under any obligation to reemploy the workman whose services have been so terminated under S.11(3). In fact, the High Court proceeded on an erroneous terminology. It was not a case of reemployment but a fresh employment of the other workmen who, the respondent claims were junior to the respondent prior to his termination from service. In the circumstances, there was no question of the respondent workman being considered for appointment merely on the ground of the employment of these three workmen even if they were junior to him while they were in service in the erstwhile company. | 1[ds]5. The High Court appears to have misdirected itself. The issue was not one of fact but of law. The question was whether under S.11(3) of the Act, the respondent workman could be deemed to have continued in service or had any right under the Act to be reemployed.The sub-section clearly provides that the services of every person employed by the erstwhile company before the appointed date would stand terminated on the designated date i.e. 8-11-1985. By the award passed by the Labour Court, the respondent workman was no doubt given notional reinstatement as if he had continued in service without the order of termination having been passed. That being so the workman would be treated on par with such of the other employees who had continued in service with the erstwhile owner up to the designated date. Along with other workmen, the respondents services would also stand terminated and he would be entitled then to the compensation as provided under sub-s.(4) of S.11. None of the provisions of the Act direct that the appellant would be under any obligation to reemploy the workman whose services have been so terminated under S.11(3). In fact, the High Court proceeded on an erroneous terminology. It was not a case of reemployment but a fresh employment of the other workmen who, the respondent claims were junior to the respondent prior to his termination from service. In the circumstances, there was no question of the respondent workman being considered for appointment merely on the ground of the employment of these three workmen even if they were junior to him while they were in service in the erstwhile company | 1 | 833 | 304 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
1. Leave granted.2. The question which is to be decided in this case relates to the interpretation of S.11(3) of the Gujarat Closed Textile Undertakings (Nationalisation) Act, 1986 (hereinafter referred to as "the Act"). By this Act, the appellant before us took over the management and assets of several textile undertakings which were closed. S.11 deals with the relationship of the appellant with the employees of the taken over undertakings.3. Respondent 1 who is the employee in this particular case, had been dismissed in 1983. The dismissal was challenged before the Labour Court. The Labour Court by an award dated 3-1-1986 set aside the order of dismissal and directed that the respondent should be reinstated with all consequential benefits.4. The mill which had been closed in 1984, was taken over by the appellant under the Act on 8-11-1985. It is not in dispute that the appellant has been able to restart the mills subsequently. The respondent claims that he was not only entitled to the benefits of reinstatement in the sense of arrears of salary from the erstwhile company from the date of dismissal up to the date of taking over i.e. 8-11-1985, but was also entitled to reemployment with the appellant for the period 15-1-1987 to 27-8-1989. As far as the first claim is concerned that is not controverted by the appellant. As far as the second part of the claim is concerned, it was the respondents case before the High Court that the appellant had reappointed persons who were junior to the respondent workman in service on 15-1-1987. It is therefore, the respondents prayer that he should have been considered for appointment and that he was entitled to wages until the date of his superannuation i.e. 27-8-1989. This was accepted by the High Court on the ground that the appellant had not denied in its affidavit that it had in fact reappointed the persons who were junior to the respondent without considering the respondents case. 5. The High Court appears to have misdirected itself. The issue was not one of fact but of law. The question was whether under S.11(3) of the Act, the respondent workman could be deemed to have continued in service or had any right under the Act to be reemployed. 6. S.11(3) provides as follows: "11. (3)(a) The services of every person employed by the owner before the appointed day shall stand terminated --(i) on the designated date if such person is not employed before that date by the Corporation under sub-s.(1) or (2), and(ii) on the date of his appointment if such person is employed before the designated date by the Corporation under sub-s.(1) or (2).(b) A person whose services stand terminated under sub clause (i) of clause (a) shall not be entitled to claim employment in the Corporation as of right." 7. Sub-s.(4) of S.11 provides for the payment of gratuity and / or compensation to the workman whose services so stood terminated on or before the appointed date i.e. 8-11-1985. 8. The sub-section clearly provides that the services of every person employed by the erstwhile company before the appointed date would stand terminated on the designated date i.e. 8-11-1985. By the award passed by the Labour Court, the respondent workman was no doubt given notional reinstatement as if he had continued in service without the order of termination having been passed. That being so the workman would be treated on par with such of the other employees who had continued in service with the erstwhile owner up to the designated date. Along with other workmen, the respondents services would also stand terminated and he would be entitled then to the compensation as provided under sub-s.(4) of S.11. None of the provisions of the Act direct that the appellant would be under any obligation to reemploy the workman whose services have been so terminated under S.11(3). In fact, the High Court proceeded on an erroneous terminology. It was not a case of reemployment but a fresh employment of the other workmen who, the respondent claims were junior to the respondent prior to his termination from service. In the circumstances, there was no question of the respondent workman being considered for appointment merely on the ground of the employment of these three workmen even if they were junior to him while they were in service in the erstwhile company.
### Response:
1
### Explanation:
5. The High Court appears to have misdirected itself. The issue was not one of fact but of law. The question was whether under S.11(3) of the Act, the respondent workman could be deemed to have continued in service or had any right under the Act to be reemployed.The sub-section clearly provides that the services of every person employed by the erstwhile company before the appointed date would stand terminated on the designated date i.e. 8-11-1985. By the award passed by the Labour Court, the respondent workman was no doubt given notional reinstatement as if he had continued in service without the order of termination having been passed. That being so the workman would be treated on par with such of the other employees who had continued in service with the erstwhile owner up to the designated date. Along with other workmen, the respondents services would also stand terminated and he would be entitled then to the compensation as provided under sub-s.(4) of S.11. None of the provisions of the Act direct that the appellant would be under any obligation to reemploy the workman whose services have been so terminated under S.11(3). In fact, the High Court proceeded on an erroneous terminology. It was not a case of reemployment but a fresh employment of the other workmen who, the respondent claims were junior to the respondent prior to his termination from service. In the circumstances, there was no question of the respondent workman being considered for appointment merely on the ground of the employment of these three workmen even if they were junior to him while they were in service in the erstwhile company
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Rafiquennessa Vs. Lal Bahadur Chetri (Dead) Through His Representatives And After Him His Legal Representatives And Others | over-ride and materially affect the terms of contracts between the parties; but the argument is that unless a clear and unambiguous intention is indicated by the legislature by adopting suitable express words in that behalf no provision of a statue should be given retrospective operation if by such operation vested rights are likely to be affected. These principles are unexceptionable and as a matter of law, no objection can be taken to them. Mr. Chatterjee has relied upon the well known observations made by Wright J. in re Athlumney; Ex parte Wilson, 1898-2 QB 547 when the learned Judge said that it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action its enactments, unless in express terms they apply to pending actions, do not affect them. He added that there was one exception to that rule, namely, that, where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing right. In order to make the statement of the law relating to the relevant rule of construction which has to be adopted in dealing with the effect of statutory provisions in this connection, we ought to add that retrospective operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the provision construed in the context where it occurs. In other words, a statutory provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur.11. Bearing in mind these principles, let us look at S. 5. Before doing so, it is necessary to consider S. 2 which provides that notwithstanding anything contained in any contract or in law for the time being in force the provisions of this Act shall apply to all non-agricultural tenancies whether created before or after the date on which this Act comes into force. This provision clearly indicates that the legislature wanted the beneficent provisions enacted by it to take within their protection not only leases executed after the Act came into force, but also leases executed prior to the operation of the Act. In other words leases which had been created before the Act applied are intended to receive the benefit of the provisions of the Act, and in that sense, the Act clearly affects vested rights of the landlords who had let out their urban properties to the tenants prior to the date of the Act. That is one important fact which is material in determining the scope and effect of S. 5.12. Now, S. 5 itself gives an unmistakable indication of the legislative intention to make its provisions retrospective. What does S. 5 provide? It provides protection to the tenants who have actually built within five years from the date of leases executed in their favour, permanent structures on the land let out to them for residential or business purposes and this protection is available either when the construction of the permanent structure has been made by the tenant in pursuance of the terms of the lease, or even without any term of that kind and the landlord had knowledge of it and had acquiesced in it. Thus, the plain object of S. 5 is to protect the tenants who have built a permanent structure either for business or for residence provided it has been built within 5 years from the date of contract of tenancy. Therefore, cases where permanent structures had been built within 5 years of the terms of contract would fall within S. 5(1) (a), even though those constructions had been made before the date of the Act. Thus, the very scheme of S. 5(1)(a) clearly postulates the extension of its protection to constructions already made. That is another point which is significant in dealing with the controversy between the parties before us.13. There is yet another point which is relevant in this connection. Section 5(1)(a) provides that the tenant shall not be evicted by the landlord from the tenancy except on the ground of non-payment of rent provided of course the conditions prescribed by it are satisfied. If the legislature had intended that this protection should operate prospectively, it would have been easy to say that the tenant shall not be sued in ejectment; such an expression would have indicated that the protection is afforded to the suits brought after the Act came into force and that might have introduced the element of prospective operation; instead, what is prohibited by S. 5 (1) (a) is the eviction of the tenant, and so, inevitably, the section must come into play for the protection of the tenant even at the appellate stage when it is clear that by the proceedings pending before the appellate court, the landlord is seeking to evict the tenant, and that obviously indicates that the pending proceedings are governed by S. 5 (1) (a) though they may have been initially instituted before the Act came into force.14. Incidentally, an appeal pending before the lower appellate court is a continuation of the suit, and so, there is no difficulty in holding that a suit which was pending when the Act came into force would be governed by S. 5(1) (a) and in appeal arising from a suit which had been decided before the Act came into force, would likewise be governed by S. 5(1) (a) provided it is pending after the date when the Act came into force. Therefore, we are satisfied that the Assam High Court was right in coming to the conclusion that the dispute between the parties in the present case must be governed by the provisions of S. 5 (1) (a). It is common ground that if S. 5(1)(a) is held to apply, the decrees passed against the appellants in both the appeals cannot be successfully challenged.15. | 0[ds]Now, S. 5 itself gives an unmistakable indication of the legislative intention to make its provisions retrospective. What does S. 5 provide? It provides protection to the tenants who have actually built within five years from the date of leases executed in their favour, permanent structures on the land let out to them for residential or business purposes and this protection is available either when the construction of the permanent structure has been made by the tenant in pursuance of the terms of the lease, or even without any term of that kind and the landlord had knowledge of it and had acquiesced in it. Thus, the plain object of S. 5 is to protect the tenants who have built a permanent structure either for business or for residence provided it has been built within 5 years from the date of contract of tenancy. Therefore, cases where permanent structures had been built within 5 years of the terms of contract would fall within S. 5(1) (a), even though those constructions had been made before the date of the Act. Thus, the very scheme of S. 5(1)(a) clearly postulates the extension of its protection to constructions already made.There is yet another point which is relevant in this connection. Section 5(1)(a) provides that the tenant shall not be evicted by the landlord from the tenancy except on the ground of non-payment of rent provided of course the conditions prescribed by it are satisfied. If the legislature had intended that this protection should operate prospectively, it would have been easy to say that the tenant shall not be sued in ejectment; such an expression would have indicated that the protection is afforded to the suits brought after the Act came into force and that might have introduced the element of prospective operation; instead, what is prohibited by S. 5 (1) (a) is the eviction of the tenant, and so, inevitably, the section must come into play for the protection of the tenant even at the appellate stage when it is clear that by the proceedings pending before the appellate court, the landlord is seeking to evict the tenant, and that obviously indicates that the pending proceedings are governed by S. 5 (1) (a) though they may have been initially instituted before the Act came into force.Incidentally, an appeal pending before the lower appellate court is a continuation of the suit, and so, there is no difficulty in holding that a suit which was pending when the Act came into force would be governed by S. 5(1) (a) and in appeal arising from a suit which had been decided before the Act came into force, would likewise be governed by S. 5(1) (a) provided it is pending after the date when the Act came into force. Therefore, we are satisfied that the Assam High Court was right in coming to the conclusion that the dispute between the parties in the present case must be governed by the provisions of S. 5 (1) (a). It is common ground that if S. 5(1)(a) is held to apply, the decrees passed against the appellants in both the appeals cannot be successfully challenged. | 0 | 2,895 | 607 | ### 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:
over-ride and materially affect the terms of contracts between the parties; but the argument is that unless a clear and unambiguous intention is indicated by the legislature by adopting suitable express words in that behalf no provision of a statue should be given retrospective operation if by such operation vested rights are likely to be affected. These principles are unexceptionable and as a matter of law, no objection can be taken to them. Mr. Chatterjee has relied upon the well known observations made by Wright J. in re Athlumney; Ex parte Wilson, 1898-2 QB 547 when the learned Judge said that it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action its enactments, unless in express terms they apply to pending actions, do not affect them. He added that there was one exception to that rule, namely, that, where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing right. In order to make the statement of the law relating to the relevant rule of construction which has to be adopted in dealing with the effect of statutory provisions in this connection, we ought to add that retrospective operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the provision construed in the context where it occurs. In other words, a statutory provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur.11. Bearing in mind these principles, let us look at S. 5. Before doing so, it is necessary to consider S. 2 which provides that notwithstanding anything contained in any contract or in law for the time being in force the provisions of this Act shall apply to all non-agricultural tenancies whether created before or after the date on which this Act comes into force. This provision clearly indicates that the legislature wanted the beneficent provisions enacted by it to take within their protection not only leases executed after the Act came into force, but also leases executed prior to the operation of the Act. In other words leases which had been created before the Act applied are intended to receive the benefit of the provisions of the Act, and in that sense, the Act clearly affects vested rights of the landlords who had let out their urban properties to the tenants prior to the date of the Act. That is one important fact which is material in determining the scope and effect of S. 5.12. Now, S. 5 itself gives an unmistakable indication of the legislative intention to make its provisions retrospective. What does S. 5 provide? It provides protection to the tenants who have actually built within five years from the date of leases executed in their favour, permanent structures on the land let out to them for residential or business purposes and this protection is available either when the construction of the permanent structure has been made by the tenant in pursuance of the terms of the lease, or even without any term of that kind and the landlord had knowledge of it and had acquiesced in it. Thus, the plain object of S. 5 is to protect the tenants who have built a permanent structure either for business or for residence provided it has been built within 5 years from the date of contract of tenancy. Therefore, cases where permanent structures had been built within 5 years of the terms of contract would fall within S. 5(1) (a), even though those constructions had been made before the date of the Act. Thus, the very scheme of S. 5(1)(a) clearly postulates the extension of its protection to constructions already made. That is another point which is significant in dealing with the controversy between the parties before us.13. There is yet another point which is relevant in this connection. Section 5(1)(a) provides that the tenant shall not be evicted by the landlord from the tenancy except on the ground of non-payment of rent provided of course the conditions prescribed by it are satisfied. If the legislature had intended that this protection should operate prospectively, it would have been easy to say that the tenant shall not be sued in ejectment; such an expression would have indicated that the protection is afforded to the suits brought after the Act came into force and that might have introduced the element of prospective operation; instead, what is prohibited by S. 5 (1) (a) is the eviction of the tenant, and so, inevitably, the section must come into play for the protection of the tenant even at the appellate stage when it is clear that by the proceedings pending before the appellate court, the landlord is seeking to evict the tenant, and that obviously indicates that the pending proceedings are governed by S. 5 (1) (a) though they may have been initially instituted before the Act came into force.14. Incidentally, an appeal pending before the lower appellate court is a continuation of the suit, and so, there is no difficulty in holding that a suit which was pending when the Act came into force would be governed by S. 5(1) (a) and in appeal arising from a suit which had been decided before the Act came into force, would likewise be governed by S. 5(1) (a) provided it is pending after the date when the Act came into force. Therefore, we are satisfied that the Assam High Court was right in coming to the conclusion that the dispute between the parties in the present case must be governed by the provisions of S. 5 (1) (a). It is common ground that if S. 5(1)(a) is held to apply, the decrees passed against the appellants in both the appeals cannot be successfully challenged.15.
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Now, S. 5 itself gives an unmistakable indication of the legislative intention to make its provisions retrospective. What does S. 5 provide? It provides protection to the tenants who have actually built within five years from the date of leases executed in their favour, permanent structures on the land let out to them for residential or business purposes and this protection is available either when the construction of the permanent structure has been made by the tenant in pursuance of the terms of the lease, or even without any term of that kind and the landlord had knowledge of it and had acquiesced in it. Thus, the plain object of S. 5 is to protect the tenants who have built a permanent structure either for business or for residence provided it has been built within 5 years from the date of contract of tenancy. Therefore, cases where permanent structures had been built within 5 years of the terms of contract would fall within S. 5(1) (a), even though those constructions had been made before the date of the Act. Thus, the very scheme of S. 5(1)(a) clearly postulates the extension of its protection to constructions already made.There is yet another point which is relevant in this connection. Section 5(1)(a) provides that the tenant shall not be evicted by the landlord from the tenancy except on the ground of non-payment of rent provided of course the conditions prescribed by it are satisfied. If the legislature had intended that this protection should operate prospectively, it would have been easy to say that the tenant shall not be sued in ejectment; such an expression would have indicated that the protection is afforded to the suits brought after the Act came into force and that might have introduced the element of prospective operation; instead, what is prohibited by S. 5 (1) (a) is the eviction of the tenant, and so, inevitably, the section must come into play for the protection of the tenant even at the appellate stage when it is clear that by the proceedings pending before the appellate court, the landlord is seeking to evict the tenant, and that obviously indicates that the pending proceedings are governed by S. 5 (1) (a) though they may have been initially instituted before the Act came into force.Incidentally, an appeal pending before the lower appellate court is a continuation of the suit, and so, there is no difficulty in holding that a suit which was pending when the Act came into force would be governed by S. 5(1) (a) and in appeal arising from a suit which had been decided before the Act came into force, would likewise be governed by S. 5(1) (a) provided it is pending after the date when the Act came into force. Therefore, we are satisfied that the Assam High Court was right in coming to the conclusion that the dispute between the parties in the present case must be governed by the provisions of S. 5 (1) (a). It is common ground that if S. 5(1)(a) is held to apply, the decrees passed against the appellants in both the appeals cannot be successfully challenged.
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Navinchandra Ratilal Patel Vs. S Gordhandas Desai Private Limited | that he would have no objection if this question of title was not gone into in this petition and if he was permitted to get the question of title decided by a separate suit if so advised. Shri Ramanathan raised no objection to this suggestion of Shri Madon, though he strongly relied on section 84 of the Act in support of his argument that the certificates of shares produced by he company would be prima facie evidence of the title of his clients in respect of these 600 shares before the allotments were cancelled by the company, and the name of Gordhanbhai entered on the shares. Since both the parties are not anxious to agitate the question of title, we have no gone into the same in these proceedings.(7) THE first question, therefore, which arises for consideration is whether the company omitted the names of the petitioners from its register of members in April, 1960, without sufficient cause. Shri Madon, in our view, is right in his contention that the original allotment made in favour of the petitioners was invalid because the allottees were minors and that the company was entitled to repudiate the allotment. But even assuming that was so, we do not think the company was entitled to proceed to delete the names of the petitioners from its register of members, and rectify the register in respect of these 600 shares in favour of the deceased, Gordhanbhai, without approaching the proper court in that behalf, especially as the interest of the minors was involved. In our view the company was not, in law, justified in deleting the names of thee petitioners in the way it did and the omission of their names from the register of members is consequently without sufficient cause. We, therefore, decide thee first issue in favour of the petitioners in both these petitions. (8) SHRI Madon then strongly relies on certain facts in support of his contention that both the petitions are barred by limitation. He points out that thought it is the case of the petitioners that they came to know of the omission of their names only in he beginning of March, 1966, his clients have denied this allegation. He also relies on he admission of the petitioners that they used to receive notices of the meetings of the company till the year 1960. He has further relied on he letter addressed by the company o respondent No. 2, Ratilal Ishwarbhai Patel, on 24th May, 1960, pointing out that as per resolutions passed at he meeting of the board of directors of the company held on 1st April, 1960, his sons, Prafulkumar and Navinchandra, are no longer members of the company. We are not, however, prepared to impute notice about the action of the company to the minors on the basis of these facts. Nor are we prepared to accept the allegation made in the petition that the petitioners came to know about the cancellation of the allotment of the shares in the beginning of March, 1966. We are of the view that limitation would begin to run against the two petitioners from the date of their attaining majority, which in the case of Navinchandra, petitioner in petition No. 9 of 1966, would be on 23rd february, 1964, when he attained majority, and in the case of Prafulkumar, petitioner in petition No. 10 of 1966, limitation would begin to run against him from the date of his attaining majority which was on 20th January, 1961.(9) SHRI Madon contends that so far at least as petition No. 10 of 1966 is concerned, it would be time barred since Prafulkumar attained majority on 20th January, 1961, and he submits that the proper article to apply to petition would be article 181 of the Limitation Act of 1908 under which the period of limitation would be 3 years from the day when the right to apply accrued. In Sha Mulchand and Co. v. Jawahar Mills Ltd. 1 (1) [1953] S. C. R. 351 ; 23 Comp. Cas. 1. the Supreme Court appears to have taken the view that article 181 of the Limitation Act of 1908 has to be construed as referring to applications under the Code of Civil Procedure in view of a long series of judicial decisions of different High Courts in India. The Supreme Court, however, did not pursue the matter further on he question of applicability of article 181 because it held that even if article 181 was to apply to the application for rectification in that case, it was within time. The Supreme Court, however, observed that if article 181 did not apply then the only article that could apply "by analogy" would be article 120, under which also the application in that case was within time. Now Shri Ramanathan contends that article 181 would not apply in view of the observations of the Supreme Court, and he proper article to apply would be article 120, and he relies in support of his arguments on the decision of the Madras High Court in the same case, Jawahar Mills Ltd. v. Sha Mulchand and Co. 1 (1) [1949] 19 Comp. Cas. 138. where rectification was sought on the ground that the forfeiture of shares by the company was illegal. Shri Ramanathan also relies on the observations of the Supreme Court in appeal from that decision, referred to earlier, that article 120 would apply to cases of rectifications "by analogy", if article 181 is not applicable. Shri Madon has suggested that the decision of the Madras High Court and of he Supreme Court might have been perhaps different if attention of the word "suit" under section 2 (10) of the Limitation Act of 1908, which provides that "suit does not include an appeal or an application. " It is difficult to say whether the attention of the Madras High Court was drawn to this definition of "suit" under the Limitation Act because it has stated that article 120 would apply "by analogy". | 1[ds](6) WE also observed than that no more issues were sought by the parties. Thereafter we adjourned the hearing of the petitions to 26th November, 1966, at New Delhi on these two issues. On 2nd November, 1966, we changed the place of hearing and directed that the petitions should be fixed for final hearing on 26th November, 1966, at Bombay, at he Tribunal was holding its sittings in Bombay from 24th November onwards. On that day, after we had heard Shri Ramanathan, learned advocate appearing on behalf of the petitioners, and Shri Madon, learned advocate appearing on behalf of the contesting respondents, it was contended by Shri Madon that perhaps the question of title would have also to be considered since it was the contention of his client that 600 shares were allotted to the petitioners father, respondent No. 2, on 1st April, 1960, when the allotment of shares in favour of the petitioners was cancelled and that these 600 shares were given by the deceased, Gordhanbhai, to respondent No. 2 in lieu of the shares previously allotted in favour of his sons. He also relied on the fact that the relevant share certificates in respect of 600 shares involved in this petition were retained, as admitted by the petitioners themselves, by he late Gordhanbhai in his own custody till the time of his death. Undoubtedly, in petitions under section 155 of the Act it would be open to the Tribunal to to decide any question relating to the tittle of any person who is a party to the application. But the difficulty in the way of Shri Madon is that the respondents have not challenged the title of the petitioners to these shares except on the basis that the original allotments in their favour were illegal on the ground of minority. Besides, an issue on his was sought to be raised when we passed our Order on 20th September, 1966, framing the two issues already mentioned above. Shri Madon, however, states that he would have no objection if this question of title was not gone into in this petition and if he was permitted to get the question of title decided by a separate suit if so advised. Shri Ramanathan raised no objection to this suggestion of Shri Madon, though he strongly relied on section 84 of the Act in support of his argument that the certificates of shares produced by he company would be prima facie evidence of the title of his clients in respect of these 600 shares before the allotments were cancelled by the company, and the name of Gordhanbhai entered on the shares. Since both the parties are not anxious to agitate the question of title, we have no gone into the same in theseMadon, in our view, is right in his contention that the original allotment made in favour of the petitioners was invalid because the allottees were minors and that the company was entitled to repudiate the allotment. But even assuming that was so, we do not think the company was entitled to proceed to delete the names of the petitioners from its register of members, and rectify the register in respect of these 600 shares in favour of the deceased, Gordhanbhai, without approaching the proper court in that behalf, especially as the interest of the minors was involved. In our view the company was not, in law, justified in deleting the names of thee petitioners in the way it did and the omission of their names from the register of members is consequently without sufficient cause. We, therefore, decide thee first issue in favour of the petitioners in both these petitions.are not, however, prepared to impute notice about the action of the company to the minors on the basis of these facts. Nor are we prepared to accept the allegation made in the petition that the petitioners came to know about the cancellation of the allotment of the shares in the beginning of March, 1966. We are of the view that limitation would begin to run against the two petitioners from the date of their attaining majority, which in the case of Navinchandra, petitioner in petition No. 9 of 1966, would be on 23rd february, 1964, when he attained majority, and in the case of Prafulkumar, petitioner in petition No. 10 of 1966, limitation would begin to run against him from the date of his attaining majority which was on 20th January,Sha Mulchand and Co. v. Jawahar Mills Ltd. 1 (1) [1953] S. C. R. 351 ; 23 Comp. Cas. 1. the Supreme Court appears to have taken the view that article 181 of the Limitation Act of 1908 has to be construed as referring to applications under the Code of Civil Procedure in view of a long series of judicial decisions of different High Courts in India. The Supreme Court, however, did not pursue the matter further on he question of applicability of article 181 because it held that even if article 181 was to apply to the application for rectification in that case, it was within time. The Supreme Court, however, observed that if article 181 did not apply then the only article that could apply "by analogy" would be article 120, under which also the application in that case was within time. Now Shri Ramanathan contends that article 181 would not apply in view of the observations of the Supreme Court, and he proper article to apply would be article 120, and he relies in support of his arguments on the decision of the Madras High Court in the same case, Jawahar Mills Ltd. v. Sha Mulchand and Co. 1 (1) [1949] 19 Comp. Cas. 138. where rectification was sought on the ground that the forfeiture of shares by the company was illegal. Shri Ramanathan also relies on the observations of the Supreme Court in appeal from that decision, referred to earlier, that article 120 would apply to cases of rectifications "by analogy", if article 181 is not applicable. Shri Madon has suggested that the decision of the Madras High Court and of he Supreme Court might have been perhaps different if attention of the word "suit" under section 2 (10) of the Limitation Act of 1908, which provides that "suit does not include an appeal or an application. " It is difficult to say whether the attention of the Madras High Court was drawn to this definition of "suit" under the Limitation Act because it has stated that article 120 would apply "by analogy". | 1 | 2,546 | 1,208 | ### Instruction:
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that he would have no objection if this question of title was not gone into in this petition and if he was permitted to get the question of title decided by a separate suit if so advised. Shri Ramanathan raised no objection to this suggestion of Shri Madon, though he strongly relied on section 84 of the Act in support of his argument that the certificates of shares produced by he company would be prima facie evidence of the title of his clients in respect of these 600 shares before the allotments were cancelled by the company, and the name of Gordhanbhai entered on the shares. Since both the parties are not anxious to agitate the question of title, we have no gone into the same in these proceedings.(7) THE first question, therefore, which arises for consideration is whether the company omitted the names of the petitioners from its register of members in April, 1960, without sufficient cause. Shri Madon, in our view, is right in his contention that the original allotment made in favour of the petitioners was invalid because the allottees were minors and that the company was entitled to repudiate the allotment. But even assuming that was so, we do not think the company was entitled to proceed to delete the names of the petitioners from its register of members, and rectify the register in respect of these 600 shares in favour of the deceased, Gordhanbhai, without approaching the proper court in that behalf, especially as the interest of the minors was involved. In our view the company was not, in law, justified in deleting the names of thee petitioners in the way it did and the omission of their names from the register of members is consequently without sufficient cause. We, therefore, decide thee first issue in favour of the petitioners in both these petitions. (8) SHRI Madon then strongly relies on certain facts in support of his contention that both the petitions are barred by limitation. He points out that thought it is the case of the petitioners that they came to know of the omission of their names only in he beginning of March, 1966, his clients have denied this allegation. He also relies on he admission of the petitioners that they used to receive notices of the meetings of the company till the year 1960. He has further relied on he letter addressed by the company o respondent No. 2, Ratilal Ishwarbhai Patel, on 24th May, 1960, pointing out that as per resolutions passed at he meeting of the board of directors of the company held on 1st April, 1960, his sons, Prafulkumar and Navinchandra, are no longer members of the company. We are not, however, prepared to impute notice about the action of the company to the minors on the basis of these facts. Nor are we prepared to accept the allegation made in the petition that the petitioners came to know about the cancellation of the allotment of the shares in the beginning of March, 1966. We are of the view that limitation would begin to run against the two petitioners from the date of their attaining majority, which in the case of Navinchandra, petitioner in petition No. 9 of 1966, would be on 23rd february, 1964, when he attained majority, and in the case of Prafulkumar, petitioner in petition No. 10 of 1966, limitation would begin to run against him from the date of his attaining majority which was on 20th January, 1961.(9) SHRI Madon contends that so far at least as petition No. 10 of 1966 is concerned, it would be time barred since Prafulkumar attained majority on 20th January, 1961, and he submits that the proper article to apply to petition would be article 181 of the Limitation Act of 1908 under which the period of limitation would be 3 years from the day when the right to apply accrued. In Sha Mulchand and Co. v. Jawahar Mills Ltd. 1 (1) [1953] S. C. R. 351 ; 23 Comp. Cas. 1. the Supreme Court appears to have taken the view that article 181 of the Limitation Act of 1908 has to be construed as referring to applications under the Code of Civil Procedure in view of a long series of judicial decisions of different High Courts in India. The Supreme Court, however, did not pursue the matter further on he question of applicability of article 181 because it held that even if article 181 was to apply to the application for rectification in that case, it was within time. The Supreme Court, however, observed that if article 181 did not apply then the only article that could apply "by analogy" would be article 120, under which also the application in that case was within time. Now Shri Ramanathan contends that article 181 would not apply in view of the observations of the Supreme Court, and he proper article to apply would be article 120, and he relies in support of his arguments on the decision of the Madras High Court in the same case, Jawahar Mills Ltd. v. Sha Mulchand and Co. 1 (1) [1949] 19 Comp. Cas. 138. where rectification was sought on the ground that the forfeiture of shares by the company was illegal. Shri Ramanathan also relies on the observations of the Supreme Court in appeal from that decision, referred to earlier, that article 120 would apply to cases of rectifications "by analogy", if article 181 is not applicable. Shri Madon has suggested that the decision of the Madras High Court and of he Supreme Court might have been perhaps different if attention of the word "suit" under section 2 (10) of the Limitation Act of 1908, which provides that "suit does not include an appeal or an application. " It is difficult to say whether the attention of the Madras High Court was drawn to this definition of "suit" under the Limitation Act because it has stated that article 120 would apply "by analogy".
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behalf of the petitioners, and Shri Madon, learned advocate appearing on behalf of the contesting respondents, it was contended by Shri Madon that perhaps the question of title would have also to be considered since it was the contention of his client that 600 shares were allotted to the petitioners father, respondent No. 2, on 1st April, 1960, when the allotment of shares in favour of the petitioners was cancelled and that these 600 shares were given by the deceased, Gordhanbhai, to respondent No. 2 in lieu of the shares previously allotted in favour of his sons. He also relied on the fact that the relevant share certificates in respect of 600 shares involved in this petition were retained, as admitted by the petitioners themselves, by he late Gordhanbhai in his own custody till the time of his death. Undoubtedly, in petitions under section 155 of the Act it would be open to the Tribunal to to decide any question relating to the tittle of any person who is a party to the application. But the difficulty in the way of Shri Madon is that the respondents have not challenged the title of the petitioners to these shares except on the basis that the original allotments in their favour were illegal on the ground of minority. Besides, an issue on his was sought to be raised when we passed our Order on 20th September, 1966, framing the two issues already mentioned above. Shri Madon, however, states that he would have no objection if this question of title was not gone into in this petition and if he was permitted to get the question of title decided by a separate suit if so advised. Shri Ramanathan raised no objection to this suggestion of Shri Madon, though he strongly relied on section 84 of the Act in support of his argument that the certificates of shares produced by he company would be prima facie evidence of the title of his clients in respect of these 600 shares before the allotments were cancelled by the company, and the name of Gordhanbhai entered on the shares. Since both the parties are not anxious to agitate the question of title, we have no gone into the same in theseMadon, in our view, is right in his contention that the original allotment made in favour of the petitioners was invalid because the allottees were minors and that the company was entitled to repudiate the allotment. But even assuming that was so, we do not think the company was entitled to proceed to delete the names of the petitioners from its register of members, and rectify the register in respect of these 600 shares in favour of the deceased, Gordhanbhai, without approaching the proper court in that behalf, especially as the interest of the minors was involved. In our view the company was not, in law, justified in deleting the names of thee petitioners in the way it did and the omission of their names from the register of members is consequently without sufficient cause. We, therefore, decide thee first issue in favour of the petitioners in both these petitions.are not, however, prepared to impute notice about the action of the company to the minors on the basis of these facts. Nor are we prepared to accept the allegation made in the petition that the petitioners came to know about the cancellation of the allotment of the shares in the beginning of March, 1966. We are of the view that limitation would begin to run against the two petitioners from the date of their attaining majority, which in the case of Navinchandra, petitioner in petition No. 9 of 1966, would be on 23rd february, 1964, when he attained majority, and in the case of Prafulkumar, petitioner in petition No. 10 of 1966, limitation would begin to run against him from the date of his attaining majority which was on 20th January,Sha Mulchand and Co. v. Jawahar Mills Ltd. 1 (1) [1953] S. C. R. 351 ; 23 Comp. Cas. 1. the Supreme Court appears to have taken the view that article 181 of the Limitation Act of 1908 has to be construed as referring to applications under the Code of Civil Procedure in view of a long series of judicial decisions of different High Courts in India. The Supreme Court, however, did not pursue the matter further on he question of applicability of article 181 because it held that even if article 181 was to apply to the application for rectification in that case, it was within time. The Supreme Court, however, observed that if article 181 did not apply then the only article that could apply "by analogy" would be article 120, under which also the application in that case was within time. Now Shri Ramanathan contends that article 181 would not apply in view of the observations of the Supreme Court, and he proper article to apply would be article 120, and he relies in support of his arguments on the decision of the Madras High Court in the same case, Jawahar Mills Ltd. v. Sha Mulchand and Co. 1 (1) [1949] 19 Comp. Cas. 138. where rectification was sought on the ground that the forfeiture of shares by the company was illegal. Shri Ramanathan also relies on the observations of the Supreme Court in appeal from that decision, referred to earlier, that article 120 would apply to cases of rectifications "by analogy", if article 181 is not applicable. Shri Madon has suggested that the decision of the Madras High Court and of he Supreme Court might have been perhaps different if attention of the word "suit" under section 2 (10) of the Limitation Act of 1908, which provides that "suit does not include an appeal or an application. " It is difficult to say whether the attention of the Madras High Court was drawn to this definition of "suit" under the Limitation Act because it has stated that article 120 would apply "by analogy".
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Khaitan Apte and Company and Another Vs. D. Rama Rao, Income Tax Officer/Excess Profits-Tax Officer, Rajahmundry and Others | HEGDE, J.1. This is an appeal by certificate from the decision of a Division Bench of the Punjab High Court M/s. Khaitan Apte & Co. were assessed to excess profits tax by the Excess Profits Tax Officer, Rajahmundry in a sum of Rs. 4, 36, 554-10-0 in respect of the accounting periods ending March, 1943, 1944, 1945 and 1946. The said firm appealed against the said order of the Excess Profits Tax Officer, Rajahmundry. In appeal, the order of the Excess Profits Tax Officer was reversed. The appellate authority came to the conclusion that the firm was not liable to pay any excess profits tax. This order of the appellate authority was confirmed by the Income-tax Appellate Tribunal. After the assessment order was made, the two partners of M/s. Khaitan Apte & Co., namely, V. S. Apte and Karundia died. During the pendency of the appeal before the appellate authority, the Excess Profits Tax Officer took proceedings for recovery of the tax assessed. L. V. Apte, son of V. S. Apte, deposited on behalf of the firm the tax assessed. After the reversal of the order of the Excess Profits Tax Officer, L. V. Apte applied for refund of the tax paid. The refund asked for was not given for a considerable time. Meanwhile, the Income-tax Officer of Bombay, who had a claim against Karundia in a sum of about rupees 19 lakhs as arrears of tax, issued a notice under section 46(5A) of the Indian Income-tax Act, 1922, to the Excess Profits Tax Officer, Rajahmundry, requiring him to remit to him half the sum of the amount liable to be refunded on the ground that the same is the asset of the deceased, Karundia. It appears that the officer remitted a sum of Rs. 4, 36, 554-10-0, out of the amount collected by him as excess profits tax, to the Income-tax Officer at Bombay. When L. V. Apte applied to the Central Board of Revenue for refund of the tax paid, the Board asked him to produce a succession certificate. Aggrieved by the attitude taken by the Central Board of Revenue, the appellants moved the High Court of Punjab under article 226 of the Constitution seeking a direction to the respondents to refund the amount in question. The writ petition came up before Harbans Singh J. The claim made in the writ petition was resisted by the respondents on various grounds. The learned single judge rejected all the grounds urged on behalf of the respondents, allowed the writ petition and issued the direction prayed forAs against the order of the learned single judge, the respondents went up in appeal to a Division Bench of the High Court. Before the Division Bench, the learned counsel for the department agreed to refund 50% of the tax collected as being the share of V. S. Apte but in respect of the other half he contended that the appellants herein were not entitled to claim the same as it had been paid over to the Income-tax Officer, Bombay, towards the arrears of tax due from Karundia. Various pleas were taken on behalf of the department in resisting the claim of the appellants. But the learned judges of the Division Bench allowed the appeal on one single ground, namely, that the writ petition was not maintainable in view of the fact that the Income-tax Officer of Bombay had not been made a party. Other grounds urged on behalf of the department were not considered by the Division Bench.2. In our opinion, the learned judges of the Division Bench erred in holding that the writ petition was not maintainable on the ground that the Income-tax Officer of Bombay had not been made a party. The Income-tax Officer of Bombay stood in the position of a garnishee. The Excess Profits Tax Officer, Rajahmundry, made over certain sums to the Income-tax Officer of Bombay on the assumption that the amount in question was the asset of Karundia. The amount in question is a part of the assets of the dissolved firm. Karundias share in the assets of that firm, we are informed, has not yet been determined. Hence, it is not possible to fix any portion of the amount to be refunded as the assets of Karundia. The payment made by the Income-tax Officer, Rajahmundry, to the Income-tax Officer, Bombay, can only be considered as an interdepartmental arrangement. It cannot amount to legal discharge. If the appellants are entitled to the refund of the amount claimed, the Income-tax Officer, Rajahmundry, will be liable to refund the same. His payment to the Income-tax Officer, Bombay, will be considered as unauthorised payment and that fact will not afford him a valid defence. The Income-tax Officer, Bombay, is not a necessary party to the petition. At best, he may be a proper partyIn view of our above conclusion, this appeal has to be allowed ; but as the Division Bench has not decided the other pleas taken by the department, this case has to go back to the High Court for deciding those questions. At that stage it is open to the respondents to move the High Court for impleading the Income-tax Officer, Bombay, as a party and it is for the High Court to decide whether such a prayer should be allowed3. | 1[ds]In our opinion, the learned judges of the Division Bench erred in holding that the writ petition was not maintainable on the ground that theOfficer of Bombay had not been made a party. TheOfficer of Bombay stood in the position of a garnishee. The Excess Profits Tax Officer, Rajahmundry, made over certain sums to theOfficer of Bombay on the assumption that the amount in question was the asset of Karundia. The amount in question is a part of the assets of the dissolved firm. Karundias share in the assets of that firm, we are informed, has not yet been determined. Hence, it is not possible to fix any portion of the amount to be refunded as the assets of Karundia. The payment made by theOfficer, Rajahmundry, to theOfficer, Bombay, can only be considered as an interdepartmental arrangement. It cannot amount to legal discharge. If the appellants are entitled to the refund of the amount claimed, theOfficer, Rajahmundry, will be liable to refund the same. His payment to theOfficer, Bombay, will be considered as unauthorised payment and that fact will not afford him a valid defence. TheOfficer, Bombay, is not a necessary party to the petition. At best, he may be a proper partyIn view of our above conclusion, this appeal has to be allowed ; but as the Division Bench has not decided the other pleas taken by the department, this case has to go back to the High Court for deciding those questions. At that stage it is open to the respondents to move the High Court for impleading theOfficer, Bombay, as a party and it is for the High Court to decide whether such a prayer should be allowed | 1 | 986 | 320 | ### 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:
HEGDE, J.1. This is an appeal by certificate from the decision of a Division Bench of the Punjab High Court M/s. Khaitan Apte & Co. were assessed to excess profits tax by the Excess Profits Tax Officer, Rajahmundry in a sum of Rs. 4, 36, 554-10-0 in respect of the accounting periods ending March, 1943, 1944, 1945 and 1946. The said firm appealed against the said order of the Excess Profits Tax Officer, Rajahmundry. In appeal, the order of the Excess Profits Tax Officer was reversed. The appellate authority came to the conclusion that the firm was not liable to pay any excess profits tax. This order of the appellate authority was confirmed by the Income-tax Appellate Tribunal. After the assessment order was made, the two partners of M/s. Khaitan Apte & Co., namely, V. S. Apte and Karundia died. During the pendency of the appeal before the appellate authority, the Excess Profits Tax Officer took proceedings for recovery of the tax assessed. L. V. Apte, son of V. S. Apte, deposited on behalf of the firm the tax assessed. After the reversal of the order of the Excess Profits Tax Officer, L. V. Apte applied for refund of the tax paid. The refund asked for was not given for a considerable time. Meanwhile, the Income-tax Officer of Bombay, who had a claim against Karundia in a sum of about rupees 19 lakhs as arrears of tax, issued a notice under section 46(5A) of the Indian Income-tax Act, 1922, to the Excess Profits Tax Officer, Rajahmundry, requiring him to remit to him half the sum of the amount liable to be refunded on the ground that the same is the asset of the deceased, Karundia. It appears that the officer remitted a sum of Rs. 4, 36, 554-10-0, out of the amount collected by him as excess profits tax, to the Income-tax Officer at Bombay. When L. V. Apte applied to the Central Board of Revenue for refund of the tax paid, the Board asked him to produce a succession certificate. Aggrieved by the attitude taken by the Central Board of Revenue, the appellants moved the High Court of Punjab under article 226 of the Constitution seeking a direction to the respondents to refund the amount in question. The writ petition came up before Harbans Singh J. The claim made in the writ petition was resisted by the respondents on various grounds. The learned single judge rejected all the grounds urged on behalf of the respondents, allowed the writ petition and issued the direction prayed forAs against the order of the learned single judge, the respondents went up in appeal to a Division Bench of the High Court. Before the Division Bench, the learned counsel for the department agreed to refund 50% of the tax collected as being the share of V. S. Apte but in respect of the other half he contended that the appellants herein were not entitled to claim the same as it had been paid over to the Income-tax Officer, Bombay, towards the arrears of tax due from Karundia. Various pleas were taken on behalf of the department in resisting the claim of the appellants. But the learned judges of the Division Bench allowed the appeal on one single ground, namely, that the writ petition was not maintainable in view of the fact that the Income-tax Officer of Bombay had not been made a party. Other grounds urged on behalf of the department were not considered by the Division Bench.2. In our opinion, the learned judges of the Division Bench erred in holding that the writ petition was not maintainable on the ground that the Income-tax Officer of Bombay had not been made a party. The Income-tax Officer of Bombay stood in the position of a garnishee. The Excess Profits Tax Officer, Rajahmundry, made over certain sums to the Income-tax Officer of Bombay on the assumption that the amount in question was the asset of Karundia. The amount in question is a part of the assets of the dissolved firm. Karundias share in the assets of that firm, we are informed, has not yet been determined. Hence, it is not possible to fix any portion of the amount to be refunded as the assets of Karundia. The payment made by the Income-tax Officer, Rajahmundry, to the Income-tax Officer, Bombay, can only be considered as an interdepartmental arrangement. It cannot amount to legal discharge. If the appellants are entitled to the refund of the amount claimed, the Income-tax Officer, Rajahmundry, will be liable to refund the same. His payment to the Income-tax Officer, Bombay, will be considered as unauthorised payment and that fact will not afford him a valid defence. The Income-tax Officer, Bombay, is not a necessary party to the petition. At best, he may be a proper partyIn view of our above conclusion, this appeal has to be allowed ; but as the Division Bench has not decided the other pleas taken by the department, this case has to go back to the High Court for deciding those questions. At that stage it is open to the respondents to move the High Court for impleading the Income-tax Officer, Bombay, as a party and it is for the High Court to decide whether such a prayer should be allowed3.
### Response:
1
### Explanation:
In our opinion, the learned judges of the Division Bench erred in holding that the writ petition was not maintainable on the ground that theOfficer of Bombay had not been made a party. TheOfficer of Bombay stood in the position of a garnishee. The Excess Profits Tax Officer, Rajahmundry, made over certain sums to theOfficer of Bombay on the assumption that the amount in question was the asset of Karundia. The amount in question is a part of the assets of the dissolved firm. Karundias share in the assets of that firm, we are informed, has not yet been determined. Hence, it is not possible to fix any portion of the amount to be refunded as the assets of Karundia. The payment made by theOfficer, Rajahmundry, to theOfficer, Bombay, can only be considered as an interdepartmental arrangement. It cannot amount to legal discharge. If the appellants are entitled to the refund of the amount claimed, theOfficer, Rajahmundry, will be liable to refund the same. His payment to theOfficer, Bombay, will be considered as unauthorised payment and that fact will not afford him a valid defence. TheOfficer, Bombay, is not a necessary party to the petition. At best, he may be a proper partyIn view of our above conclusion, this appeal has to be allowed ; but as the Division Bench has not decided the other pleas taken by the department, this case has to go back to the High Court for deciding those questions. At that stage it is open to the respondents to move the High Court for impleading theOfficer, Bombay, as a party and it is for the High Court to decide whether such a prayer should be allowed
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Asnew Drums Private Limited & Others Vs. Maharashtra State Finance Corporation & Others | rules had been framed containing the provisions of the Code of Civil Procedure to be applied for this purpose. The relevant part of sub-section (7) provides that after making an investigation under sub-s. (6) the District Judge may confirm the order of attachment and direct the sale of the attached property. It is under this sub-section that the District Judge confirmed the order of attachment and directed the sale of the attached property.7. Sub-section (8) of S.32 calls for interpretation in this appeal. It provides:"32 (8) An order of attachment or sale of property under this section shall be carried into effect as far as practicable in the manner provided in the Code of Civil Procedure, 1908 for the attachment or sale of property in execution of a decree as if the Financial Corporation were the decree-holder". The District Judge applying the relevant provisions of the Code of Civil Procedure issued various proclamations for sale. The last one year issued in pursuance of the order dated June 30, 1969 of the District Judge directing that the properties be again put up for sale. On July 22, 1969 a fresh proclamation for the fifth time for sale was issued and on August 20, 1969 a public notice was published in the Times of India only. On August 28, 1969, the highest bid for lot No. 1 was Rupees 5,70,000/- and for lot No.2 Rs. 5,40,000/-. The sale was adjourned to September 3, 1969 but no public notice of this adjournment was given."8. The District Judge directed the Financial Corporation to get the evaluation of the property made by some expert. It is stated that M/s. Corona Electricals valued land at Rs.3,04,610/-, building at Rs. 7,41,486/- and machinery at Rs.7,02,000/- - total Rs.17,47,096/-. On September 2, 1969, the appellant company protested against this hurried valuation, but on September 3, 1969 the whole property was sold for Rs. 11,50,000/- to M/s. Kayjay Industries Private Ltd., auction purchasers, who deposited in Court Rs.2,87,500/- being 1/4th of the amount of the bid. On September 12, 1969, the remaining amount was paid by the auction-purchasers and on October 3, 1969 the appellant company applied for setting aside the sale. On January 16, 1970 this application was dismissed. On February 13, 1970 the appellant company filed F. A. No. 152/70 in the Bombay High Court. The Bombay High Court, as already stated, rejected the appeal on February 16, 1970 on the ground that no appeal lay and also on the ground that there was no merit in the appeal.9. The question which really arises is whether by using the words "in the manner provided in the Code of Civil Procedure" in S.32 (8) the Legislature intended to include the provisions in the Code dealing with appeals. There is no doubt that under the Code of Civil Procedure an order setting aside on refusing to set aside a sale in execution of a decree is appealable under O. XLIII R. 1 (1). It is difficult to understand why the scope of the language should be cut down by not including appeals provided under the Code of Civil Procedure within the ambit of the words "in the manner provided in the Code of Civil Procedure". "Manner" means method of procedure and to provide for an appeal is to provide for a mode of procedure. The State Financial Corporation lends huge amounts and we cannot for a moment imagine that it was the intention of the Legislature to make the order of sale of property, passed by the District Judge, final and only subject to an appeal to the Supreme Court under Art. 136 of the Constitution.10. The learned counsel for the respondents contended that, wherever the Legislature wanted to provide for an appeal to the High Court, it did so specifically. In this connection he pointed out that sub-s. (9) of S. 32 provided that"any part aggrieved by an order under sub-section (5) or sub-section (7) may, within thirty days from the date of the order, appeal to the High Court, and upon such appeal the High Court may, after hearing the parties, pass such orders thereon as it thinks proper".It is true that an appeal has been expressly provided in this case but the reason for this is that if there had been no specific provision in sub-s. (9), no appeal would lie otherwise because it is not provided in sub-s. (5) or sub-section (7) that the District Judge should proceed in the manner provided in the Code of Civil Procedure.11. We are not impressed by the argument that the Act confers jurisdiction on the District Judge as persona designata because sub-s. (11) of S. 32 provides that"the functions of a district judge under this section shall be exercisable (a) in a presidency town, where there is a city civil court having jurisdiction by a judge of that court and in the absence of such court, by the High Court; and (b) elsewhere, also by an additional district judge."These provisions clearly show that the District Judge is not a persona designata.12. It was contended that the whole idea of the Act was to have expeditious execution as otherwise large funds of the State Financial Corporation would be locked up during execution proceedings. If this was the intention of the Legislature, it would have expressly provided that no appeal would lie against an order made under sub-s. (8) of S. 32.13. In the result we hold that an appeal lay to the Bombay High Court and the High Court erred in holding that no appeal lay.14. The next question is whether it was a case in which the appeal should have been dismissed summarily. This Court gave special leave against the order of the District Judge, dated January 16, 1970, (Civil Appeal No. 1852 of 1970). Prima facie this Court thought that there was something to be said on the merits of the case. We accordingly hold that the High Court was not justified in dismissing the appeal summarily. | 1[ds]It is true that an appeal has been expressly provided in this case but the reason for this is that if there had been no specific provision in sub-s. (9), no appeal would lie otherwise because it is not provided in sub-s. (5) or sub-section (7) that the District Judge should proceed in the manner provided in theCode of Civil Procedure.11. We are not impressed by the argument that the Act confers jurisdiction on the District Judge as persona designata because sub-s. (11) of S. 32 providesfunctions of a district judge under this section shall be exercisable (a) in a presidency town, where there is a city civil court having jurisdiction by a judge of that court and in the absence of such court, by the High Court; and (b) elsewhere, also by an additional districtprovisions clearly show that the District Judge is not a persona designata.12. It was contended that the whole idea of the Act was to have expeditious execution as otherwise large funds of the State Financial Corporation would be locked up during execution proceedings. If this was the intention of the Legislature, it would have expressly provided that no appeal would lie against an order made under sub-s. (8) of S. 32.13. In the result we hold that an appeal lay to the Bombay High Court and the High Court erred in holding that no appealfacie this Court thought that there was something to be said on the merits of the case. We accordingly hold that the High Court was not justified in dismissing the appeal summarily | 1 | 1,846 | 290 | ### 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:
rules had been framed containing the provisions of the Code of Civil Procedure to be applied for this purpose. The relevant part of sub-section (7) provides that after making an investigation under sub-s. (6) the District Judge may confirm the order of attachment and direct the sale of the attached property. It is under this sub-section that the District Judge confirmed the order of attachment and directed the sale of the attached property.7. Sub-section (8) of S.32 calls for interpretation in this appeal. It provides:"32 (8) An order of attachment or sale of property under this section shall be carried into effect as far as practicable in the manner provided in the Code of Civil Procedure, 1908 for the attachment or sale of property in execution of a decree as if the Financial Corporation were the decree-holder". The District Judge applying the relevant provisions of the Code of Civil Procedure issued various proclamations for sale. The last one year issued in pursuance of the order dated June 30, 1969 of the District Judge directing that the properties be again put up for sale. On July 22, 1969 a fresh proclamation for the fifth time for sale was issued and on August 20, 1969 a public notice was published in the Times of India only. On August 28, 1969, the highest bid for lot No. 1 was Rupees 5,70,000/- and for lot No.2 Rs. 5,40,000/-. The sale was adjourned to September 3, 1969 but no public notice of this adjournment was given."8. The District Judge directed the Financial Corporation to get the evaluation of the property made by some expert. It is stated that M/s. Corona Electricals valued land at Rs.3,04,610/-, building at Rs. 7,41,486/- and machinery at Rs.7,02,000/- - total Rs.17,47,096/-. On September 2, 1969, the appellant company protested against this hurried valuation, but on September 3, 1969 the whole property was sold for Rs. 11,50,000/- to M/s. Kayjay Industries Private Ltd., auction purchasers, who deposited in Court Rs.2,87,500/- being 1/4th of the amount of the bid. On September 12, 1969, the remaining amount was paid by the auction-purchasers and on October 3, 1969 the appellant company applied for setting aside the sale. On January 16, 1970 this application was dismissed. On February 13, 1970 the appellant company filed F. A. No. 152/70 in the Bombay High Court. The Bombay High Court, as already stated, rejected the appeal on February 16, 1970 on the ground that no appeal lay and also on the ground that there was no merit in the appeal.9. The question which really arises is whether by using the words "in the manner provided in the Code of Civil Procedure" in S.32 (8) the Legislature intended to include the provisions in the Code dealing with appeals. There is no doubt that under the Code of Civil Procedure an order setting aside on refusing to set aside a sale in execution of a decree is appealable under O. XLIII R. 1 (1). It is difficult to understand why the scope of the language should be cut down by not including appeals provided under the Code of Civil Procedure within the ambit of the words "in the manner provided in the Code of Civil Procedure". "Manner" means method of procedure and to provide for an appeal is to provide for a mode of procedure. The State Financial Corporation lends huge amounts and we cannot for a moment imagine that it was the intention of the Legislature to make the order of sale of property, passed by the District Judge, final and only subject to an appeal to the Supreme Court under Art. 136 of the Constitution.10. The learned counsel for the respondents contended that, wherever the Legislature wanted to provide for an appeal to the High Court, it did so specifically. In this connection he pointed out that sub-s. (9) of S. 32 provided that"any part aggrieved by an order under sub-section (5) or sub-section (7) may, within thirty days from the date of the order, appeal to the High Court, and upon such appeal the High Court may, after hearing the parties, pass such orders thereon as it thinks proper".It is true that an appeal has been expressly provided in this case but the reason for this is that if there had been no specific provision in sub-s. (9), no appeal would lie otherwise because it is not provided in sub-s. (5) or sub-section (7) that the District Judge should proceed in the manner provided in the Code of Civil Procedure.11. We are not impressed by the argument that the Act confers jurisdiction on the District Judge as persona designata because sub-s. (11) of S. 32 provides that"the functions of a district judge under this section shall be exercisable (a) in a presidency town, where there is a city civil court having jurisdiction by a judge of that court and in the absence of such court, by the High Court; and (b) elsewhere, also by an additional district judge."These provisions clearly show that the District Judge is not a persona designata.12. It was contended that the whole idea of the Act was to have expeditious execution as otherwise large funds of the State Financial Corporation would be locked up during execution proceedings. If this was the intention of the Legislature, it would have expressly provided that no appeal would lie against an order made under sub-s. (8) of S. 32.13. In the result we hold that an appeal lay to the Bombay High Court and the High Court erred in holding that no appeal lay.14. The next question is whether it was a case in which the appeal should have been dismissed summarily. This Court gave special leave against the order of the District Judge, dated January 16, 1970, (Civil Appeal No. 1852 of 1970). Prima facie this Court thought that there was something to be said on the merits of the case. We accordingly hold that the High Court was not justified in dismissing the appeal summarily.
### Response:
1
### Explanation:
It is true that an appeal has been expressly provided in this case but the reason for this is that if there had been no specific provision in sub-s. (9), no appeal would lie otherwise because it is not provided in sub-s. (5) or sub-section (7) that the District Judge should proceed in the manner provided in theCode of Civil Procedure.11. We are not impressed by the argument that the Act confers jurisdiction on the District Judge as persona designata because sub-s. (11) of S. 32 providesfunctions of a district judge under this section shall be exercisable (a) in a presidency town, where there is a city civil court having jurisdiction by a judge of that court and in the absence of such court, by the High Court; and (b) elsewhere, also by an additional districtprovisions clearly show that the District Judge is not a persona designata.12. It was contended that the whole idea of the Act was to have expeditious execution as otherwise large funds of the State Financial Corporation would be locked up during execution proceedings. If this was the intention of the Legislature, it would have expressly provided that no appeal would lie against an order made under sub-s. (8) of S. 32.13. In the result we hold that an appeal lay to the Bombay High Court and the High Court erred in holding that no appealfacie this Court thought that there was something to be said on the merits of the case. We accordingly hold that the High Court was not justified in dismissing the appeal summarily
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Annapurna Carbon Industries Co Vs. State Of Andhra Pradesh | v. Commissioner of Sales Tax, Madhya Pradesh; where it was also held that a "tractor" which is "nothing but a self-propelled vehicle capable of pulling a load" or "tractor", does not acquire the character of "agricultural land it is used also to draw certain agricultural implements like a plough; State of Mysore v. Kores (India) Ltd., where it was held that a typewriter ribbon is not an essential part of a typewriter so as to attract the tax under entry 18 of the second schedule to the Mysore Sales Tax Act, 1957; Commissioner of Sales Tax, U.P. v. Free India Cycle Industries, where it was held that exine saddle covers used also for bicycle seats are not covered by entry No. 34 introduced by Section 3A of the U.P. Sales Tax Act, 1948, as modified subsequently, which read : "bicycles, tricycles, cycle rickshaws and perambulators and parts and accessories thereof other than tyres and tubes" : Madhya Pradesh State Co-operative Marketing Society, Jabalpur v. Commissioner of Sales Tax, M.P., Indore, where it was held that "oil-engines and pumps", which are not known in the commercial world as "agricultural machinery" could not be covered by an entry meant for goods sold for agricultural purposes simply because some of them are also sold to agriculturists for agricultural purposes. 6. We do not think that any useful purpose is served by multiplying cases relating to entries which are so very different and could have only a very remote bearing, if any, upon any reasoning which could be adopted to support the submission that the arc carbons, under consideration here, fall within the relevant entry 4 of Schedule I of the Act. The meaning to this entry can only be satisfactorily determined in the light of the language of the entry itself considered in the context in which it occurs. 7. The entry No. 4 occurs in a schedule in which descriptions of goods to be taxed indicate that the expression "required for use there with" has been employed for equipment or accessories connected with the main purpose. For instance, in entry No. 5 the expression occurs at the end as follows :"Photographic and other cameras the enlargers, films and plate, paper and cloth and other parts and accessories required for use therewith.Apparently, the deciding factor is the predominant or ordinary purpose or us. It is not enough to show that the article can be put to other uses also. It is its general or predominant user which seems to determine the category in which an article will fall." 8. The first entry in the schedule relates to "motor vehicles" and includes "component parts of motor vehicles" and "articles (including batteries) adapted for use as parts and accessories of motor vehicles", but excludes certain other articles by putting in the words "not being such articles as are ordinarily also used for other purposes than as parts and accessories of motor vehicles". Entry No. 2, relating to refrigerators, air conditioning plants covers also "component parts thereof". Again, entry No. 3, for "wireless reception instruments and apparatus" includes "electrical valves, accumulators, amplifiers and loudspeakers and spare parts and accessories thereof". The words "parts thereof" are used in several entries, such as entry No. 6 for clocks, timepiece and watches, entry No. 10 for dictaphones and other similar apparatus for recording sound, and entry No. 11 for sound transmitting equipment such as telephones and loudspeakers. 9. Our object in indicating the nature of entries, amidst which entry No. 4 occurs, is to show that some precision has been attempted in making the entries. When it was intended to confine the entry to particular gadgets and "parts thereof" the entry said so. Of course, even where an entry relates to parts manufactured for us for a particular kind of instrument or gadget only, the article, manufactured to serve as a part of a particular kind of apparatus, would not cease to be covered by the intended entry simply because a purchaser makes some other use of it. We have to find the intention of the farmers of the schedule in making the entry in each case. The best guide to their intentions is the language actually employed by them. 10. We find that the term "accessories" is used in the schedule to describe goods which may have been manufactured for use as an aid or addition. A sense in which the word accessory is used is given in Websters Third New International Dictionary as follows :"An object or device that is essential in itself but that adds to the beauty, convenience, or effectiveness of something else. Other meanings given there are : "supplementary or secondary to some thing of greater or primary importance", "additional", "any of several mechanical devices that assist in operating or controlling the tone resources of an organ : "Accessories" are not necessarily confined to particular machines for which they may serve as aids. The same item may be an accessory of more than on kind of instrument." 11. It will be noticed that the entry we have to interpret includes "parts" as well as "accessories" which are required for use in projectors or other cinematographic equipment. We think that the Andhra Pradesh High Court correctly held that the main use of the arc carbons under consideration was duly proved to be that of production of powerful light used in projectors in cinemas. The fact that they can also be used for searchlights, signalling, stage lighting, or where powerful lighting for photography or other purposes may be required, could not detract from the classification to which the carbon arcs belong. That is determined by their ordinary or commonly known purpose or user. This, as already observed by us, is evident from the fact that they are known as "cinema arc carbons" in the market. This finding was enough, in our opinion, to justify the view taken by the Andhra Pradesh High Court that the goods under consideration are covered by the relevant entry No. 4. | 0[ds]6. We do not think that any useful purpose is served by multiplying cases relating to entries which are so very different and could have only a very remote bearing, if any, upon any reasoning which could be adopted to support the submission that the arc carbons, under consideration here, fall within the relevant entry 4 of Schedule I of the Act. The meaning to this entry can only be satisfactorily determined in the light of the language of the entry itself considered in the context in which it occurs9. Our object in indicating the nature of entries, amidst which entry No. 4 occurs, is to show that some precision has been attempted in making the entries. When it was intended to confine the entry to particular gadgets and "parts thereof" the entry said so. Of course, even where an entry relates to parts manufactured for us for a particular kind of instrument or gadget only, the article, manufactured to serve as a part of a particular kind of apparatus, would not cease to be covered by the intended entry simply because a purchaser makes some other use of it. We have to find the intention of the farmers of the schedule in making the entry in each case. The best guide to their intentions is the language actually employed by them10. We find that the term "accessories" is used in the schedule to describe goods which may have been manufactured for use as an aid or addition11. It will be noticed that the entry we have to interpret includes "parts" as well as "accessories" which are required for use in projectors or other cinematographic equipment. We think that the Andhra Pradesh High Court correctly held that the main use of the arc carbons under consideration was duly proved to be that of production of powerful light used in projectors in cinemas. The fact that they can also be used for searchlights, signalling, stage lighting, or where powerful lighting for photography or other purposes may be required, could not detract from the classification to which the carbon arcs belong. That is determined by their ordinary or commonly known purpose or user. This, as already observed by us, is evident from the fact that they are known as "cinema arc carbons" in the marketThis finding was enough, in our opinion, to justify the view taken by the Andhra Pradesh High Court that the goods under consideration are covered by the relevant entry No. 4. | 0 | 1,863 | 461 | ### 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:
v. Commissioner of Sales Tax, Madhya Pradesh; where it was also held that a "tractor" which is "nothing but a self-propelled vehicle capable of pulling a load" or "tractor", does not acquire the character of "agricultural land it is used also to draw certain agricultural implements like a plough; State of Mysore v. Kores (India) Ltd., where it was held that a typewriter ribbon is not an essential part of a typewriter so as to attract the tax under entry 18 of the second schedule to the Mysore Sales Tax Act, 1957; Commissioner of Sales Tax, U.P. v. Free India Cycle Industries, where it was held that exine saddle covers used also for bicycle seats are not covered by entry No. 34 introduced by Section 3A of the U.P. Sales Tax Act, 1948, as modified subsequently, which read : "bicycles, tricycles, cycle rickshaws and perambulators and parts and accessories thereof other than tyres and tubes" : Madhya Pradesh State Co-operative Marketing Society, Jabalpur v. Commissioner of Sales Tax, M.P., Indore, where it was held that "oil-engines and pumps", which are not known in the commercial world as "agricultural machinery" could not be covered by an entry meant for goods sold for agricultural purposes simply because some of them are also sold to agriculturists for agricultural purposes. 6. We do not think that any useful purpose is served by multiplying cases relating to entries which are so very different and could have only a very remote bearing, if any, upon any reasoning which could be adopted to support the submission that the arc carbons, under consideration here, fall within the relevant entry 4 of Schedule I of the Act. The meaning to this entry can only be satisfactorily determined in the light of the language of the entry itself considered in the context in which it occurs. 7. The entry No. 4 occurs in a schedule in which descriptions of goods to be taxed indicate that the expression "required for use there with" has been employed for equipment or accessories connected with the main purpose. For instance, in entry No. 5 the expression occurs at the end as follows :"Photographic and other cameras the enlargers, films and plate, paper and cloth and other parts and accessories required for use therewith.Apparently, the deciding factor is the predominant or ordinary purpose or us. It is not enough to show that the article can be put to other uses also. It is its general or predominant user which seems to determine the category in which an article will fall." 8. The first entry in the schedule relates to "motor vehicles" and includes "component parts of motor vehicles" and "articles (including batteries) adapted for use as parts and accessories of motor vehicles", but excludes certain other articles by putting in the words "not being such articles as are ordinarily also used for other purposes than as parts and accessories of motor vehicles". Entry No. 2, relating to refrigerators, air conditioning plants covers also "component parts thereof". Again, entry No. 3, for "wireless reception instruments and apparatus" includes "electrical valves, accumulators, amplifiers and loudspeakers and spare parts and accessories thereof". The words "parts thereof" are used in several entries, such as entry No. 6 for clocks, timepiece and watches, entry No. 10 for dictaphones and other similar apparatus for recording sound, and entry No. 11 for sound transmitting equipment such as telephones and loudspeakers. 9. Our object in indicating the nature of entries, amidst which entry No. 4 occurs, is to show that some precision has been attempted in making the entries. When it was intended to confine the entry to particular gadgets and "parts thereof" the entry said so. Of course, even where an entry relates to parts manufactured for us for a particular kind of instrument or gadget only, the article, manufactured to serve as a part of a particular kind of apparatus, would not cease to be covered by the intended entry simply because a purchaser makes some other use of it. We have to find the intention of the farmers of the schedule in making the entry in each case. The best guide to their intentions is the language actually employed by them. 10. We find that the term "accessories" is used in the schedule to describe goods which may have been manufactured for use as an aid or addition. A sense in which the word accessory is used is given in Websters Third New International Dictionary as follows :"An object or device that is essential in itself but that adds to the beauty, convenience, or effectiveness of something else. Other meanings given there are : "supplementary or secondary to some thing of greater or primary importance", "additional", "any of several mechanical devices that assist in operating or controlling the tone resources of an organ : "Accessories" are not necessarily confined to particular machines for which they may serve as aids. The same item may be an accessory of more than on kind of instrument." 11. It will be noticed that the entry we have to interpret includes "parts" as well as "accessories" which are required for use in projectors or other cinematographic equipment. We think that the Andhra Pradesh High Court correctly held that the main use of the arc carbons under consideration was duly proved to be that of production of powerful light used in projectors in cinemas. The fact that they can also be used for searchlights, signalling, stage lighting, or where powerful lighting for photography or other purposes may be required, could not detract from the classification to which the carbon arcs belong. That is determined by their ordinary or commonly known purpose or user. This, as already observed by us, is evident from the fact that they are known as "cinema arc carbons" in the market. This finding was enough, in our opinion, to justify the view taken by the Andhra Pradesh High Court that the goods under consideration are covered by the relevant entry No. 4.
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6. We do not think that any useful purpose is served by multiplying cases relating to entries which are so very different and could have only a very remote bearing, if any, upon any reasoning which could be adopted to support the submission that the arc carbons, under consideration here, fall within the relevant entry 4 of Schedule I of the Act. The meaning to this entry can only be satisfactorily determined in the light of the language of the entry itself considered in the context in which it occurs9. Our object in indicating the nature of entries, amidst which entry No. 4 occurs, is to show that some precision has been attempted in making the entries. When it was intended to confine the entry to particular gadgets and "parts thereof" the entry said so. Of course, even where an entry relates to parts manufactured for us for a particular kind of instrument or gadget only, the article, manufactured to serve as a part of a particular kind of apparatus, would not cease to be covered by the intended entry simply because a purchaser makes some other use of it. We have to find the intention of the farmers of the schedule in making the entry in each case. The best guide to their intentions is the language actually employed by them10. We find that the term "accessories" is used in the schedule to describe goods which may have been manufactured for use as an aid or addition11. It will be noticed that the entry we have to interpret includes "parts" as well as "accessories" which are required for use in projectors or other cinematographic equipment. We think that the Andhra Pradesh High Court correctly held that the main use of the arc carbons under consideration was duly proved to be that of production of powerful light used in projectors in cinemas. The fact that they can also be used for searchlights, signalling, stage lighting, or where powerful lighting for photography or other purposes may be required, could not detract from the classification to which the carbon arcs belong. That is determined by their ordinary or commonly known purpose or user. This, as already observed by us, is evident from the fact that they are known as "cinema arc carbons" in the marketThis finding was enough, in our opinion, to justify the view taken by the Andhra Pradesh High Court that the goods under consideration are covered by the relevant entry No. 4.
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J.S. Davar Vs. Shankar Vishnu Marathe | difficult to appreciate that men of business knowing their interest would agree to such a provision. The Managing Director had made a false claim to the building which belongs to the company. He agreed to sell the building to Yeshwant Mutual Insurance Co. Ltd. , and took an earnest of Rs. 47,000 from them. He put the Insurance Company in possession and during the course of the last few years that Company has recovered by way of rent an amount larger than the one which it had paid by way of earnest. The Insurance Company has been taken over by the Life Insurance Corporation of India which has very properly taken the view that it will not enforce the agreement of sale. It is content that the amount paid by way of earnest has already been recovered in the shape of rent. It would be clear from these facts that the Managing Director has wrongly appropriated to himself the sum of Rupees 47,000. It, therefore, seems to us strange that he should be said to have transferred the land to the company for a consideration of Rupees 47,000. The company today is in possession of the building as well as the land and whatever may be the complications arising out of the duel ownership of the building and the land, the company could not be dispossessed, save through a proper action.(34) Finally, as we have stated earlier, the object of a scheme of reconstruction must be to enable the company to tide over a temporary difficulty and re-establish its business. This company has not only large liabilities and meagre assets but as matters stand today it has neither a place to carry on its business nor the equipment with which to conduct it. The company owns six acres of land, three acres from out of which are to be sold under the scheme. The remaining three acres are in the possession of the Bajaj Electricals Limited and the Lunar Caustics Limited. The building on the Laxmi Road is mostly in the possession of tenants and, besides, the company will not be able to do its business in the building. That is about the place of business. As regards the machinery and equipment, the entire machinery which belonged to the company and with which it used to conduct its business has been sold by the liquidators for Rs. 1,20,000 It is from this amount that the liquidators had paid an interim dividend of 19 paise to the creditors. If the company has to start its business afresh, it will have to find a place first which in Poona is neither easy nor cheap to obtain and it will then have to buy the equipment and the machinery for which a considerable amount would have to be expended.(35) Mr. Mistry says that the business of dyeing and printing cloth which the company used to do does not require a large capital or an expensive machinery. It is not possible to agree with this submission. The balance-sheet of the company at exhibit 85 would show that in 1950 it had stock in hand worth about Rs. 92,000 and in 1951, the stock-in-hand was worth about Rs. 61,000. Dyes and Chemicals in the respective years were of the value of Rs. 52,000 and Rs. 40,000. As stated earlier, the company has hardly any means to pay the interest on the outstanding debts. It seems to us impossible that it will be able to raise any amount for the purchase of the equipment and the machinery needed for its business. The scheme is so unrealistic and impractical that it does not even attempt to visualise where and with what equipment the company will do its business.(36) We will only cite one more reason why the scheme should not be sanctioned. That reason is by no means the least important After the trial Court decided Suit No. 835 of 1955 in respect of the building at Laxmi Road, the Official Liquidators filed a misfeasance summons on the 2nd November 1957 against the Managing Director and three other directors of the company. The misfeasance summons was stayed during the pendency of the second appeal filed by the Managing Director in this Court. The fact that the misfeasance proceedings were taken against the directors of the company is not shown to have been disclosed to the shareholders and creditors of the company. While considering the scheme, its was highly relevant whether the conduct of the Managing Director and the other directors was such that the fate of the company could be put in their hands. If the creditors were told that a Court of law had held that the Managing Director was guilty of fraud as against the company and if they were further told that misfeasance proceedings were taken against the Directors, their decision on the approval of the scheme could have been easily otherwise.(37) It is urged by Mr. Mistry that it was the duty of the Official Liquidators to disclose to the creditors and the shareholders that misfeasance proceedings were taken against the directors. The question, in out opinion, is not who is to blame for the nondisclosure of such an important fact, but the question is whether material facts were before the shareholders and creditors who had met to consider the scheme. We are not surprised that the sponsors of the scheme did not disclose to the meeting that misfeasance proceedings were pending, because two of the sponsors of the scheme. Gopal Ganesh Ketkar and Achyut Dattarya Phatak figure as delinquent directors in those proceedings. The Managing Director of the company against whom also misfeasance proceedings are taken is the father of Achyut Dattatraya Phatak. It seems to us clear that if the creditors and shareholders were apprised that misfeasance proceedings were taken against the Directors of the company, they would not have approved the scheme under which the affairs of the company are once again relegated into the hands of the self-same directors. | 1[ds](22) On a review of these authorities and from the provisions in section 153 (2) of the Indian Companies Act, 1913, it seems to us clear that the consent of the majority of creditors or shareholders to a scheme does not conclude the issue whether the scheme should be sanctioned. The jurisdiction of the Court which is called upon to sanction a scheme transcends the mere consideration that a majority of those affected by the scheme is willing to submit to the scheme. The creditors of a company may agree to accept a fraction of the amount due to them from the company and yet, on considerations of more lasting importance, like public or commercial morality, the Court refuse to accept the verdict of the majority. It may also refuse to accept the scheme on the ground that it is not reasonable or that it is not feasible or that there is no chance that it will yield to a smooth and satisfactory execution. By reasonable is generally meant that the arrangement cannot reasonably be supposed by sensible business people to be for the benefit of the class which they represent. The Court will also not sanction the scheme if the facts which would have influenced decision of the majority were not known or disclosed to the majority, or if the sponsors of the scheme have misrepresented the true position of the company. Finally, if the acceptance of the scheme would lead to the stifling of an inquiry into the conduct of the delinquent directors, the Court would be slow to give its sanction to the scheme. Considerations such as those mentioned above must be taken into account by a Court before a scheme is sanctioned but in the very nature of things, it is not possible to enumerate exhaustively the circumstances which a Court is entitled to take into consideration.(23) In our opinion, therefore there is no substance in the submission of Mr. Mistry that he decision of the majority must necessarily lead to the inference that the scheme is for the benefit of that class which was represented in the statutory meeting. It is undoubtedly true that the verdict of the majority must be given due weight, because implicit in that verdict is the inference that those whose interests are likely to be affected by the scheme are willing to submit to it. As we have, however, stated earlier, the view of the majority is but one element in the case, though a very important one, which must be taken into account in sanctioning the scheme. The view of the majority is not decisive.(24) We must now turn to the more important clauses of the scheme in order to show why the scheme cannot be sanctioned. A scheme of reconstruction of a company which is ordered to be wound up must postulate that on some reasonable hypothesis it is possible to revive the business of the company. The assets of this Company are so meagre and its liabilities so large that it is in a state of hopeless insolvency, From that state it would, in our opinion, be impossible to resuscitatestatement prepared by Mr. Mistry as reflecting the position of the company under the scheme is open to certain objections, but even assuming that it truly reflects the financial position of the company, it is clear that the company is wholly insolvent. According to the statement submitted by Mr. Mistry, the company will have assets of the value of Rs. 6,73,000 and liabilities amounting to Rs. 7,24,500, under the scheme. It is difficult to see how the company is going to function without any running capital and without any liquid assets. We must also mention that the liabilities shown in the statements tendered before us by Mr. Mistry ignore many other liabilities which the company shall have to meet. For example, the arrears of tax have been shown in the statement at Rs. 32,000 when, in fact, the company will have to pay a much larger amount under that head. If the building on the Laxmi Road belongs to the company, and that is the decision in the suit filed by the Liquidators against the Managing Directors, the company will have to payon the monthly rent received during the course of the last many years. The Managing Director had made an unfounded claim that the building belonged to him and the rent was not taxed in his hands, because it is said that his income was less than the minimum taxable.(25) The total debts of the company can be taken roughly at Rs. 7,44,000. if the personal debts of the Managing Director amounting to Rs. 1,57,000 which under the scheme are passed on to the company are added to it, the total liability of the company would come to Rs. 9,01,000. About Rs, 1,20,000 were paid by the Liquidators as interim dividend and, therefore, a sum of Rs. 7,81,000 is still due from the company by way of debts.(26) As against these debts, the assets of the company consist of a vacant plot of three acres which under the scheme is to be sold for Rs. 1,85,000, another plot of three acres which yields a monthly rent of Rs. 2,100, a building on the Laxmi Road which yields an income of Rs. 1,300 per month and about Rs. 43,000 which are lying to the credit of the company as rent of the building on the Laxmi Road.(27) Under clause (f) of the scheme, Rs. 1,87,000 would have to be paid to the creditors in partial satisfaction of their dues at 25 paise in rupee. Thetherefore of the three acres of land at Yerandavana shall have been used for the purpose of paying debts partially. Under clause (g) of the scheme debentures of the value of Rs. 2,02,500 bearing interest at 7 1/2 per cent per annum are to be issued in favour of the creditors. The interest on the debentures alone would come to Rs. 16,000 per annum. Under clause (i) (a) of the scheme, a cash amount of Rupees 70,000 is required to be paid to thesecured creditors of the Managing Director. The sum of Rs. 43,000 which is lying to the credit of the company as rent of the Laxmi Road property can be used to meet this liability but a balance of Rs. 27,000 will still remain outstanding against the company.(28) Under clause (i) (b) of the scheme, debentures of the value of Rs. 30,000 bearing interest at 7 1/2 per cent per annum are to be issued in favour of the personal creditors of the Managing Director. The interest on these debentures will come to Rs. 2,250 per year. Under the same clause a mortgage is to be created in favour of some of the creditors of the Managing Director, in the sum of Rupees 57,000, with the interest at 6 per cent per annum. The interest on the mortgage will come to Rs. 3,420 per year.(29) The first question which one might consider is from where will the company pay even the interest to the secured creditors. The interest payable to the two classes of debenture holders and the mortgages comes to Rs. 21,670 per year. The only source of income to the company today is the rent of Rs. 2,100 per month from the three acres of plot which is in the possession of two companies called the Bajaj Electrical Limited and the Hunar Caustics Limited and the rent of Rs. 1,300 per month from the Pioneer House at Laxmi Road, Poona. Excluding four moths rent for taxes, repairs and out goings the company will receive a sum of Rs, 27,200 per year by way of rent. The best part of this amount shall have to be utilised for paying the interest on the debentures and the mortgages, with the result that the company will not be left with any capital to carry on its business. It is urged by Mr. Mistry that under the scheme, the company would issue fresh shares for subscription by the public and the public may come forth to buy the shares. This possibility seems to us for too optimistic. A company which has gone in liquidation, which for over ten years is unable to meet its obligations and whose affairs are in such fresh capital. The possibility, therefore, that the company may be able to raise capital for its business must be excluded. Therefore, if the scheme is accepted, all that can happen is that the evil day will be postponed. We see no justification for prolonging the agonies of the creditors any more. It seems to us certain that even if the scheme is accepted, the company will have to face a fresh challenge to its solvency within a short time.(30) The second reason why the scheme cannot be sanctioned is that its object appears to us to be to cover the deeds of delinquent directors. In Civil Suit. No. 835 of 1955 which was filed by the Official Liquidators against the Managing Director and another person for a declaration that the building called pioneer House on the Laxmi Road, Poona, is of the ownership of the company, the trial Court held that the Managing Director had made a false claim to the building, that he had manipulated accounts to suit his convenience and that he had not acted in the best interests of the company. The decree of the trial Court was confirmed in appeal by theJudge, Poona, who also held that the Managing Director was guilty of fraud. The Managing Director had filed an appeal in this Court from the judgment of the learnedJudge, being Second Appeal No. 925 of 1959, but that appeal was withdrawn during the hearing of this appeal. We explained to the learned counsel appearing for the Managing Director that the withdrawal of the appeal will not efface the finding of fraud, but counsel stated that he was conscious of that position but had advised his client that it was not in his interest to prosecute the appeal. If the scheme is sanctioned, the winding up order will stand set aside, the liquidators will be discharged, there will be none to prosecute the misfeasance summons against the erring directors and the assets of the company will once again fall into he hands of persons whose rectitude is under a cloud. That cannot be permitted under the cloak of a scheme of reconstruction.(31) The third reason why the scheme cannot be sanctioned is that it provides by clause (i) (a) that the personal debts of the Managing Director, amounting to Rs. 1,57,000, should be taken over by the company. It seems to us utterly unreasonable that the company should undertake to discharge the personal liabilities of the Managing Director. While justifying this provision, the scheme resorts to some mathematics and a little logic both of which are fictitious. In fact, the adoption of such a provision by the creditors shows that they gave their consent to the scheme without appreciating its real implications. In the language of the decision in the Alabama case, this part of the arrangement is not such as men of business would reasonably approve.(32) We would like to draw attention to a few other provisions of the scheme which appear to us unreasonable and impractical. Under clause (d) of the scheme, the vacant plot at Yerandavana measuring about three acres is required to be sold by private treaty for a sum of Rs. 1,85,000. We see no reason why the property should be sold privately. Public offers have never been invited for the sale of this property and not even a formal valuation of the property has been made. The decision, therefore, that the property should be sold at Rs. 1,85,000 strikes us as arbitrary and unreasonable. The location of the property, its extent and its potentialities indicate that the property is capable of fetching a much higher price.(33) Under the earlier part of clause (i) (a) of the scheme, the Managing Director agrees to transfer the land under the building pioneer House, to the Company for a consideration of Rs. 47,000. It is difficult to appreciate that men of business knowing their interest would agree to such a provision. The Managing Director had made a false claim to the building which belongs to the company. He agreed to sell the building to Yeshwant Mutual Insurance Co. Ltd. , and took an earnest of Rs. 47,000 from them. He put the Insurance Company in possession and during the course of the last few years that Company has recovered by way of rent an amount larger than the one which it had paid by way of earnest. The Insurance Company has been taken over by the Life Insurance Corporation of India which has very properly taken the view that it will not enforce the agreement of sale. It is content that the amount paid by way of earnest has already been recovered in the shape of rent. It would be clear from these facts that the Managing Director has wrongly appropriated to himself the sum of Rupees 47,000. It, therefore, seems to us strange that he should be said to have transferred the land to the company for a consideration of Rupees 47,000. The company today is in possession of the building as well as the land and whatever may be the complications arising out of the duel ownership of the building and the land, the company could not be dispossessed, save through a proper action.(34) Finally, as we have stated earlier, the object of a scheme of reconstruction must be to enable the company to tide over a temporary difficulty andits business. This company has not only large liabilities and meagre assets but as matters stand today it has neither a place to carry on its business nor the equipment with which to conduct it. The company owns six acres of land, three acres from out of which are to be sold under the scheme. The remaining three acres are in the possession of the Bajaj Electricals Limited and the Lunar Caustics Limited. The building on the Laxmi Road is mostly in the possession of tenants and, besides, the company will not be able to do its business in the building. That is about the place of business. As regards the machinery and equipment, the entire machinery which belonged to the company and with which it used to conduct its business has been sold by the liquidators for Rs. 1,20,000 It is from this amount that the liquidators had paid an interim dividend of 19 paise to the creditors. If the company has to start its business afresh, it will have to find a place first which in Poona is neither easy nor cheap to obtain and it will then have to buy the equipment and the machinery for which a considerable amount would have to be expended.(35) Mr. Mistry says that the business of dyeing and printing cloth which the company used to do does not require a large capital or an expensive machinery. It is not possible to agree with this submission. Theof the company at exhibit 85 would show that in 1950 it had stock in hand worth about Rs. 92,000 and in 1951, thewas worth about Rs. 61,000. Dyes and Chemicals in the respective years were of the value of Rs. 52,000 and Rs. 40,000. As stated earlier, the company has hardly any means to pay the interest on the outstanding debts. It seems to us impossible that it will be able to raise any amount for the purchase of the equipment and the machinery needed for its business. The scheme is so unrealistic and impractical that it does not even attempt to visualise where and with what equipment the company will do its business.(36) We will only cite one more reason why the scheme should not be sanctioned. That reason is by no means the least important After the trial Court decided Suit No. 835 of 1955 in respect of the building at Laxmi Road, the Official Liquidators filed a misfeasance summons on the 2nd November 1957 against the Managing Director and three other directors of the company. The misfeasance summons was stayed during the pendency of the second appeal filed by the Managing Director in this Court. The fact that the misfeasance proceedings were taken against the directors of the company is not shown to have been disclosed to the shareholders and creditors of the company. While considering the scheme, its was highly relevant whether the conduct of the Managing Director and the other directors was such that the fate of the company could be put in their hands. If the creditors were told that a Court of law had held that the Managing Director was guilty of fraud as against the company and if they were further told that misfeasance proceedings were taken against the Directors, their decision on the approval of the scheme could have been easilyquestion, in out opinion, is not who is to blame for the nondisclosure of such an important fact, but the question is whether material facts were before the shareholders and creditors who had met to consider the scheme. We are not surprised that the sponsors of the scheme did not disclose to the meeting that misfeasance proceedings were pending, because two of the sponsors of the scheme. Gopal Ganesh Ketkar and Achyut Dattarya Phatak figure as delinquent directors in those proceedings. The Managing Director of the company against whom also misfeasance proceedings are taken is the father of Achyut Dattatraya Phatak. It seems to us clear that if the creditors and shareholders were apprised that misfeasance proceedings were taken against the Directors of the company, they would not have approved the scheme under which the affairs of the company are once again relegated into the hands of the | 1 | 9,024 | 3,293 | ### 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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difficult to appreciate that men of business knowing their interest would agree to such a provision. The Managing Director had made a false claim to the building which belongs to the company. He agreed to sell the building to Yeshwant Mutual Insurance Co. Ltd. , and took an earnest of Rs. 47,000 from them. He put the Insurance Company in possession and during the course of the last few years that Company has recovered by way of rent an amount larger than the one which it had paid by way of earnest. The Insurance Company has been taken over by the Life Insurance Corporation of India which has very properly taken the view that it will not enforce the agreement of sale. It is content that the amount paid by way of earnest has already been recovered in the shape of rent. It would be clear from these facts that the Managing Director has wrongly appropriated to himself the sum of Rupees 47,000. It, therefore, seems to us strange that he should be said to have transferred the land to the company for a consideration of Rupees 47,000. The company today is in possession of the building as well as the land and whatever may be the complications arising out of the duel ownership of the building and the land, the company could not be dispossessed, save through a proper action.(34) Finally, as we have stated earlier, the object of a scheme of reconstruction must be to enable the company to tide over a temporary difficulty and re-establish its business. This company has not only large liabilities and meagre assets but as matters stand today it has neither a place to carry on its business nor the equipment with which to conduct it. The company owns six acres of land, three acres from out of which are to be sold under the scheme. The remaining three acres are in the possession of the Bajaj Electricals Limited and the Lunar Caustics Limited. The building on the Laxmi Road is mostly in the possession of tenants and, besides, the company will not be able to do its business in the building. That is about the place of business. As regards the machinery and equipment, the entire machinery which belonged to the company and with which it used to conduct its business has been sold by the liquidators for Rs. 1,20,000 It is from this amount that the liquidators had paid an interim dividend of 19 paise to the creditors. If the company has to start its business afresh, it will have to find a place first which in Poona is neither easy nor cheap to obtain and it will then have to buy the equipment and the machinery for which a considerable amount would have to be expended.(35) Mr. Mistry says that the business of dyeing and printing cloth which the company used to do does not require a large capital or an expensive machinery. It is not possible to agree with this submission. The balance-sheet of the company at exhibit 85 would show that in 1950 it had stock in hand worth about Rs. 92,000 and in 1951, the stock-in-hand was worth about Rs. 61,000. Dyes and Chemicals in the respective years were of the value of Rs. 52,000 and Rs. 40,000. As stated earlier, the company has hardly any means to pay the interest on the outstanding debts. It seems to us impossible that it will be able to raise any amount for the purchase of the equipment and the machinery needed for its business. The scheme is so unrealistic and impractical that it does not even attempt to visualise where and with what equipment the company will do its business.(36) We will only cite one more reason why the scheme should not be sanctioned. That reason is by no means the least important After the trial Court decided Suit No. 835 of 1955 in respect of the building at Laxmi Road, the Official Liquidators filed a misfeasance summons on the 2nd November 1957 against the Managing Director and three other directors of the company. The misfeasance summons was stayed during the pendency of the second appeal filed by the Managing Director in this Court. The fact that the misfeasance proceedings were taken against the directors of the company is not shown to have been disclosed to the shareholders and creditors of the company. While considering the scheme, its was highly relevant whether the conduct of the Managing Director and the other directors was such that the fate of the company could be put in their hands. If the creditors were told that a Court of law had held that the Managing Director was guilty of fraud as against the company and if they were further told that misfeasance proceedings were taken against the Directors, their decision on the approval of the scheme could have been easily otherwise.(37) It is urged by Mr. Mistry that it was the duty of the Official Liquidators to disclose to the creditors and the shareholders that misfeasance proceedings were taken against the directors. The question, in out opinion, is not who is to blame for the nondisclosure of such an important fact, but the question is whether material facts were before the shareholders and creditors who had met to consider the scheme. We are not surprised that the sponsors of the scheme did not disclose to the meeting that misfeasance proceedings were pending, because two of the sponsors of the scheme. Gopal Ganesh Ketkar and Achyut Dattarya Phatak figure as delinquent directors in those proceedings. The Managing Director of the company against whom also misfeasance proceedings are taken is the father of Achyut Dattatraya Phatak. It seems to us clear that if the creditors and shareholders were apprised that misfeasance proceedings were taken against the Directors of the company, they would not have approved the scheme under which the affairs of the company are once again relegated into the hands of the self-same directors.
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capable of fetching a much higher price.(33) Under the earlier part of clause (i) (a) of the scheme, the Managing Director agrees to transfer the land under the building pioneer House, to the Company for a consideration of Rs. 47,000. It is difficult to appreciate that men of business knowing their interest would agree to such a provision. The Managing Director had made a false claim to the building which belongs to the company. He agreed to sell the building to Yeshwant Mutual Insurance Co. Ltd. , and took an earnest of Rs. 47,000 from them. He put the Insurance Company in possession and during the course of the last few years that Company has recovered by way of rent an amount larger than the one which it had paid by way of earnest. The Insurance Company has been taken over by the Life Insurance Corporation of India which has very properly taken the view that it will not enforce the agreement of sale. It is content that the amount paid by way of earnest has already been recovered in the shape of rent. It would be clear from these facts that the Managing Director has wrongly appropriated to himself the sum of Rupees 47,000. It, therefore, seems to us strange that he should be said to have transferred the land to the company for a consideration of Rupees 47,000. The company today is in possession of the building as well as the land and whatever may be the complications arising out of the duel ownership of the building and the land, the company could not be dispossessed, save through a proper action.(34) Finally, as we have stated earlier, the object of a scheme of reconstruction must be to enable the company to tide over a temporary difficulty andits business. This company has not only large liabilities and meagre assets but as matters stand today it has neither a place to carry on its business nor the equipment with which to conduct it. The company owns six acres of land, three acres from out of which are to be sold under the scheme. The remaining three acres are in the possession of the Bajaj Electricals Limited and the Lunar Caustics Limited. The building on the Laxmi Road is mostly in the possession of tenants and, besides, the company will not be able to do its business in the building. That is about the place of business. As regards the machinery and equipment, the entire machinery which belonged to the company and with which it used to conduct its business has been sold by the liquidators for Rs. 1,20,000 It is from this amount that the liquidators had paid an interim dividend of 19 paise to the creditors. If the company has to start its business afresh, it will have to find a place first which in Poona is neither easy nor cheap to obtain and it will then have to buy the equipment and the machinery for which a considerable amount would have to be expended.(35) Mr. Mistry says that the business of dyeing and printing cloth which the company used to do does not require a large capital or an expensive machinery. It is not possible to agree with this submission. Theof the company at exhibit 85 would show that in 1950 it had stock in hand worth about Rs. 92,000 and in 1951, thewas worth about Rs. 61,000. Dyes and Chemicals in the respective years were of the value of Rs. 52,000 and Rs. 40,000. As stated earlier, the company has hardly any means to pay the interest on the outstanding debts. It seems to us impossible that it will be able to raise any amount for the purchase of the equipment and the machinery needed for its business. The scheme is so unrealistic and impractical that it does not even attempt to visualise where and with what equipment the company will do its business.(36) We will only cite one more reason why the scheme should not be sanctioned. That reason is by no means the least important After the trial Court decided Suit No. 835 of 1955 in respect of the building at Laxmi Road, the Official Liquidators filed a misfeasance summons on the 2nd November 1957 against the Managing Director and three other directors of the company. The misfeasance summons was stayed during the pendency of the second appeal filed by the Managing Director in this Court. The fact that the misfeasance proceedings were taken against the directors of the company is not shown to have been disclosed to the shareholders and creditors of the company. While considering the scheme, its was highly relevant whether the conduct of the Managing Director and the other directors was such that the fate of the company could be put in their hands. If the creditors were told that a Court of law had held that the Managing Director was guilty of fraud as against the company and if they were further told that misfeasance proceedings were taken against the Directors, their decision on the approval of the scheme could have been easilyquestion, in out opinion, is not who is to blame for the nondisclosure of such an important fact, but the question is whether material facts were before the shareholders and creditors who had met to consider the scheme. We are not surprised that the sponsors of the scheme did not disclose to the meeting that misfeasance proceedings were pending, because two of the sponsors of the scheme. Gopal Ganesh Ketkar and Achyut Dattarya Phatak figure as delinquent directors in those proceedings. The Managing Director of the company against whom also misfeasance proceedings are taken is the father of Achyut Dattatraya Phatak. It seems to us clear that if the creditors and shareholders were apprised that misfeasance proceedings were taken against the Directors of the company, they would not have approved the scheme under which the affairs of the company are once again relegated into the hands of the
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Suba Singh Vs. Davinder Kaur | being Rs.1,45,900/-, would be a modest and reasonable amount as compensation for defendant no.2, the minor child of the deceased till she attained majority and got married. We, therefore, see no scope for any interference with the amount of compensation awarded by the first appellate court. 14. It is indeed true that the courts below have awarded interest at the rather higher rate of 12% per annum. In the facts of the case, we are satisfied that simple interest at the rate of 6% per annum from the date of the filing of the suit till payment would meet the ends of justice. We, accordingly, modify and reduce the rate of interest to 6% per annum. 15. Having, thus, considered and disposed of all the contentions raised on behalf of the appellants, we would like to advert to another issue that is a cause of no little concern to us. 16. We are constrained to observe that a suit for damages for murder of a person, like the present one, is filed under the Fatal Accidents Act, 1855. As the year of its enactment shows the Act dates back to the period when the greater part of the country was under the control of the East India Company with the last Mughal Emperor, Bahadur Shah Zafar as the ineffective, though, titular monarch on the throne of Delhi. 17. The Act is based on the Fatal Accidents Act, 1846 and according to the short title given to it by the Indian Short Titles Act, 1897, it is An Act to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong. Its Preamble reads as follows: Whereas no action or suit is now maintainable in any Court against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is often- times right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him 18. It originally consisted of three sections, but, the original section 1 was renumbered as section 1A by the Part B States (Laws) Act (3 of 1951), S. 3 and Schedule, with effect from April 1, 1951. Section 1A of the Act provides as follows: 1A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.-- Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator, or representative of the person deceased; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct. 19. Later on the operation of the Act was extended to different parts of the country and as on date it extends to the whole of India except the State of Jammu and Kashmir. 20. It is a matter of grave concern that such sensitive matters like payment of compensation and damages for death resulting from a wrongful or negligent act are governed by a law which is more than one and a half centuries old. Twenty one years ago a Constitution Bench of this Court in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 , a case arising from the Bhopal Gas Tragedy, had taken note of this antiquated law and in paragraph 168 made the following observations: 168. While it may be a matter for scientists and technicians to find solutions to avoid such large scale disasters, the law must provide an effective and speedy remedy to the victims of such torts. The Fatal Accidents Act, on account of its limited and restrictive application, is hardly suited to meet such a challenge. We are, therefore, of the opinion that the old antiquated Act should be drastically amended or fresh legislation should be enacted which should, inter alia, contain appropriate provisions in regard to the following matters: (i) The payment of a fixed minimum compensation on a no- fault liability basis (as under the Motor Vehicles Act), pending final adjudication of the claims by a prescribed forum; (ii) The creation of a special forum with specific power to grant interim relief in appropriate cases; (iii) The evolution of a procedure to be followed by such forum which will be conducive to the expeditious determination of claims and avoid the high degree of formalism that attaches to proceedings in regular courts; and (iv) A provision requiring industries and concerns engaged in hazardous activities to take out compulsory insurance against third party risks. (emphasis supplied) 21. It is unfortunate that the observations of the Supreme Court have so far gone completely unheeded. We hope and trust that the Union Government would at least now take note of the urgent need to bring a contemporaneous and comprehensive legislation on the subject and proceed to act in the matter without any further delay. | 0[ds]9. Now, coming back to the present appeal, the judgments of the High Court and the courts below were assailed by the counsel for the appellants on the plea of double jeopardy. It was submitted that the appellants were being punished twice over for the same offence. Learned counsel also referred to section 357 of the Code of Criminal Procedure and submitted that there being a specific provision there for payment of compensation, a suit for damages would not be maintainable10. The rule against double jeopardy is contained in sub-article (2) of Article 20 of the Constitution of India which mandates that no person shall be prosecuted and punished for the same offence more than once. Now, it is elementary that an action for civil damages is not prosecution and a decree of damages is not a punishment. The rule of double jeopardy, therefore, has no application to this case11. The submission based on section 357 of the Cr.P.C. is equally without substance. Section 357 of the Code reads as under:357. Order to pay compensation.- (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied-(a) in defraying the expenses properly incurred in the prosecution;(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion, of the Court, recoverable by such person in a Civil Court;(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or if an appeal be presented, before the decision of the appeal(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this sectionThe contention made on behalf of the appellants is fully answered by clauses (b) and (c) of sub-section (1) and sub-section (5) of section 357 of the Code. In those provisions there is a clear and explicit recognition of a civil suit at the instance of the dependents of a person killed, against his/her killers. In sub-section (1)(c) of section 357 there is clear indication that apart from the punishment of fine, the person convicted of any offence of having caused the death of another person or of having abetted the commission of such an offence may also be liable to face a civil action for damages under the Fatal Accidents Act, 1855 in a suit for damages and sub-section (5) of section 357 of the Code makes it all the more clear by stipulating that at the time of awarding compensation in a subsequent civil suit relating to the same matter the court shall take into account any sum paid or recovered as compensation under that section.13. In the end, counsel for the appellants, rather feebly submitted thatthe widow of Surinder Singh was not entitled to any compensation because she had remarried during the pendency of the suit. We find no substance in this submission either. It may be noted that the first appellate court has taken the sum of Rs.12,400/- as the annual input by the deceased towards the maintenance of his wife and the minor child. The remarriage of plaintiff no.1 took place after seven years of filing of the suit. The amount of compensation reckoned for 7 years at the rate of Rs.12,400/- per annum would be Rs.86,800/-. The balance being Rs.1,45,900/-, would be a modest and reasonable amount as compensation for defendant no.2, the minor child of the deceased till she attained majority and got married. We, therefore, see no scope for any interference with the amount of compensation awarded by the first appellate court14. It is indeed true that the courts below have awarded interest at the rather higher rate of 12% per annum. In the facts of the case, we are satisfied that simple interest at the rate of 6% per annum from the date of the filing of the suit till payment would meet the ends of justice. We, accordingly, modify and reduce the rate of interest to 6% per annum15. Having, thus, considered and disposed of all the contentions raised on behalf of the appellants, we would like to advert to another issue that is a cause of no little concern to us16. We are constrained to observe that a suit for damages for murder of a person, like the present one, is filed under the Fatal Accidents Act, 1855. As the year of its enactment shows the Act dates back to the period when the greater part of the country was under the control of the East India Company with the last Mughal Emperor, Bahadur Shah Zafar as the ineffective, though, titular monarch on the throne of Delhi17. The Act is based on the Fatal Accidents Act, 1846 and according to the short title given to it by the Indian Short Titles Act, 1897, it is An Act to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong. Its Preamble reads as follows: Whereas no action or suit is now maintainable in any Court against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is often- times right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him18. It originally consisted of three sections, but, the original section 1 was renumbered as section 1A by the Part B States (Laws) Act (3 of 1951), S. 3 and Schedule, with effect from April 1, 1951. Section 1A of the Act provides as follows:1A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.-- Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crimeEvery such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator, or representative of the person deceased; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct19. Later on the operation of the Act was extended to different parts of the country and as on date it extends to the whole of India except the State of Jammu and Kashmir20. It is a matter of grave concern that such sensitive matters like payment of compensation and damages for death resulting from a wrongful or negligent act are governed by a law which is more than one and a half centuries old. Twenty one years ago a Constitution Bench of this Court in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 , a case arising from the Bhopal Gas Tragedy, had taken note of this antiquated law and in paragraph 168 made the following observations:168. While it may be a matter for scientists and technicians to find solutions to avoid such large scale disasters, the law must provide an effective and speedy remedy to the victims of such torts. The Fatal Accidents Act, on account of its limited and restrictive application, is hardly suited to meet such a challenge. We are, therefore, of the opinion that the old antiquated Act should be drastically amended or fresh legislation should be enacted which should, inter alia, contain appropriate provisions in regard to the following matters:(i) The payment of a fixed minimum compensation on a no- fault liability basis (as under the Motor Vehicles Act), pending final adjudication of the claims by a prescribed forum;(ii) The creation of a special forum with specific power to grant interim relief in appropriate cases;(iii) The evolution of a procedure to be followed by such forum which will be conducive to the expeditious determination of claims and avoid the high degree of formalism that attaches to proceedings in regular courts; and(iv) A provision requiring industries and concerns engaged in hazardous activities to take out compulsory insurance against third party risks21. It is unfortunate that the observations of the Supreme Court have so far gone completely unheeded. We hope and trust that the Union Government would at least now take note of the urgent need to bring a contemporaneous and comprehensive legislation on the subject and proceed to act in the matter without any further delay | 0 | 3,151 | 2,036 | ### 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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being Rs.1,45,900/-, would be a modest and reasonable amount as compensation for defendant no.2, the minor child of the deceased till she attained majority and got married. We, therefore, see no scope for any interference with the amount of compensation awarded by the first appellate court. 14. It is indeed true that the courts below have awarded interest at the rather higher rate of 12% per annum. In the facts of the case, we are satisfied that simple interest at the rate of 6% per annum from the date of the filing of the suit till payment would meet the ends of justice. We, accordingly, modify and reduce the rate of interest to 6% per annum. 15. Having, thus, considered and disposed of all the contentions raised on behalf of the appellants, we would like to advert to another issue that is a cause of no little concern to us. 16. We are constrained to observe that a suit for damages for murder of a person, like the present one, is filed under the Fatal Accidents Act, 1855. As the year of its enactment shows the Act dates back to the period when the greater part of the country was under the control of the East India Company with the last Mughal Emperor, Bahadur Shah Zafar as the ineffective, though, titular monarch on the throne of Delhi. 17. The Act is based on the Fatal Accidents Act, 1846 and according to the short title given to it by the Indian Short Titles Act, 1897, it is An Act to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong. Its Preamble reads as follows: Whereas no action or suit is now maintainable in any Court against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is often- times right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him 18. It originally consisted of three sections, but, the original section 1 was renumbered as section 1A by the Part B States (Laws) Act (3 of 1951), S. 3 and Schedule, with effect from April 1, 1951. Section 1A of the Act provides as follows: 1A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.-- Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator, or representative of the person deceased; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct. 19. Later on the operation of the Act was extended to different parts of the country and as on date it extends to the whole of India except the State of Jammu and Kashmir. 20. It is a matter of grave concern that such sensitive matters like payment of compensation and damages for death resulting from a wrongful or negligent act are governed by a law which is more than one and a half centuries old. Twenty one years ago a Constitution Bench of this Court in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 , a case arising from the Bhopal Gas Tragedy, had taken note of this antiquated law and in paragraph 168 made the following observations: 168. While it may be a matter for scientists and technicians to find solutions to avoid such large scale disasters, the law must provide an effective and speedy remedy to the victims of such torts. The Fatal Accidents Act, on account of its limited and restrictive application, is hardly suited to meet such a challenge. We are, therefore, of the opinion that the old antiquated Act should be drastically amended or fresh legislation should be enacted which should, inter alia, contain appropriate provisions in regard to the following matters: (i) The payment of a fixed minimum compensation on a no- fault liability basis (as under the Motor Vehicles Act), pending final adjudication of the claims by a prescribed forum; (ii) The creation of a special forum with specific power to grant interim relief in appropriate cases; (iii) The evolution of a procedure to be followed by such forum which will be conducive to the expeditious determination of claims and avoid the high degree of formalism that attaches to proceedings in regular courts; and (iv) A provision requiring industries and concerns engaged in hazardous activities to take out compulsory insurance against third party risks. (emphasis supplied) 21. It is unfortunate that the observations of the Supreme Court have so far gone completely unheeded. We hope and trust that the Union Government would at least now take note of the urgent need to bring a contemporaneous and comprehensive legislation on the subject and proceed to act in the matter without any further delay.
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compensation reckoned for 7 years at the rate of Rs.12,400/- per annum would be Rs.86,800/-. The balance being Rs.1,45,900/-, would be a modest and reasonable amount as compensation for defendant no.2, the minor child of the deceased till she attained majority and got married. We, therefore, see no scope for any interference with the amount of compensation awarded by the first appellate court14. It is indeed true that the courts below have awarded interest at the rather higher rate of 12% per annum. In the facts of the case, we are satisfied that simple interest at the rate of 6% per annum from the date of the filing of the suit till payment would meet the ends of justice. We, accordingly, modify and reduce the rate of interest to 6% per annum15. Having, thus, considered and disposed of all the contentions raised on behalf of the appellants, we would like to advert to another issue that is a cause of no little concern to us16. We are constrained to observe that a suit for damages for murder of a person, like the present one, is filed under the Fatal Accidents Act, 1855. As the year of its enactment shows the Act dates back to the period when the greater part of the country was under the control of the East India Company with the last Mughal Emperor, Bahadur Shah Zafar as the ineffective, though, titular monarch on the throne of Delhi17. The Act is based on the Fatal Accidents Act, 1846 and according to the short title given to it by the Indian Short Titles Act, 1897, it is An Act to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong. Its Preamble reads as follows: Whereas no action or suit is now maintainable in any Court against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is often- times right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him18. It originally consisted of three sections, but, the original section 1 was renumbered as section 1A by the Part B States (Laws) Act (3 of 1951), S. 3 and Schedule, with effect from April 1, 1951. Section 1A of the Act provides as follows:1A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.-- Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crimeEvery such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator, or representative of the person deceased; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct19. Later on the operation of the Act was extended to different parts of the country and as on date it extends to the whole of India except the State of Jammu and Kashmir20. It is a matter of grave concern that such sensitive matters like payment of compensation and damages for death resulting from a wrongful or negligent act are governed by a law which is more than one and a half centuries old. Twenty one years ago a Constitution Bench of this Court in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 , a case arising from the Bhopal Gas Tragedy, had taken note of this antiquated law and in paragraph 168 made the following observations:168. While it may be a matter for scientists and technicians to find solutions to avoid such large scale disasters, the law must provide an effective and speedy remedy to the victims of such torts. The Fatal Accidents Act, on account of its limited and restrictive application, is hardly suited to meet such a challenge. We are, therefore, of the opinion that the old antiquated Act should be drastically amended or fresh legislation should be enacted which should, inter alia, contain appropriate provisions in regard to the following matters:(i) The payment of a fixed minimum compensation on a no- fault liability basis (as under the Motor Vehicles Act), pending final adjudication of the claims by a prescribed forum;(ii) The creation of a special forum with specific power to grant interim relief in appropriate cases;(iii) The evolution of a procedure to be followed by such forum which will be conducive to the expeditious determination of claims and avoid the high degree of formalism that attaches to proceedings in regular courts; and(iv) A provision requiring industries and concerns engaged in hazardous activities to take out compulsory insurance against third party risks21. It is unfortunate that the observations of the Supreme Court have so far gone completely unheeded. We hope and trust that the Union Government would at least now take note of the urgent need to bring a contemporaneous and comprehensive legislation on the subject and proceed to act in the matter without any further delay
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SHANMUGAM Vs. STATE BY INSPECTOR OF POLICE, TAMIL NADU | of 2006. The appellant pleaded not guilty and claimed trial. After considering the arguments and analysing the evidence on record, the learned Additional Sessions Judge convicted the appellant for the offences punishable under Section 302 of I.P.C. and under Sections 224 r/w 511 of I.P.C. and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.500/-. Further, in default thereof to undergo rigorous imprisonment for one month for the offence under Section 302 of I.P.C. and to undergo rigorous imprisonment for one year for the offence under Section 224 r/w 511 of I.P.C. 4. Aggrieved by the order of conviction, the appellant appealed before the High Court being Crl. Appeal No.508 of 2007. On 26.02.2008, the Division Bench of the High Court after thorough analysis of facts and circumstances confirmed the conviction of the appellant and dismissed the appeal. Being aggrieved the appellant has approached this Court by way of Special Leave to Appeal (Crl.) No.4700/2009. 5. The learned Counsel Mr. V. Ramasubramanian, appearing on behalf of the appellant, has contended that the case of the prosecution is based upon circumstantial evidence alleging that there is no circumstance pointed out by the prosecution to prove the guilt of the accused-appellant beyond all reasonable doubt. Thus, he argues that the conviction on the basis of the assumptions is not sustainable in law. 6. On the other hand, the learned Counsel Mr. M. Yogesh Kanna appearing on behalf of the State while supporting the judgment of the High Court, has contended that this Court should take a wholesome view instead of viewing circumstances in isolation in order to conclude whether a complete chain of events has been proved by the prosecution or not. 7. We have carefully considered the submission of the learned counsel for the parties and perused the impugned judgment and other materials placed on record. 8. It is not in dispute that the appellant/accused was arrested by the then Sub-Inspector of Police (PW-1), Video Piracy Cell, at 7.30 p.m. on 09.09.2005 and at that time the deceased was with him. The evidence of PW-1 discloses that at the relevant point of time, the deceased did not have any residence. Therefore, he requested PW-1 to permit him to stay in the office (Video Piracy Cell) along with the accused where the accused was brought. PW-6 has stated that till 2.00 a.m. on 10.09.2005, PW-1 was in the office and later on left the office leaving the deceased constable and the accused inside the office by locking the door from outside as per the request of the deceased. This version of PW-1 has not been challenged in the cross-examination. 9. Since the office premises was not shown in the rough sketch (Ex.P.22), the evidence of PW-6 was also questioned. However, this is nothing but an irregularity on the part of the I.O. PW-6 has categorically stated that he did not have residence in the nearby place. Therefore, he remained at the office to finish his pending work. Keeping in mind the above situation, we are of the view that the evidence of PW-6 cannot be doubted and if the same is accepted, the story concocted by the accused that the deceased was murdered by PW-1 is only to falsely implicate PW-1. 10. The evidence adduced by PW-1 was also corroborated by the evidence of the Head Constable (PW-2) who was accompanying PW-1 at around 7.30 a.m. on 10.09.2005. It is clear from the evidence of PW-2 that when PW-1 opened the locked door, the accused tried to escape but was caught at the spot. This deposition has also remained unchallenged in the cross-examination. 11. It is in the evidence of PW-9 that on 10.09.2005 around 2.30 a.m. she was on duty of receiving PCR calls. She deposed that on that day she received a call from the accused who informed about some commotion said to have taken place in 6 th Street on 100 feet road, near Kalyan Silks. The accused did not call to attribute the commission of the offence to PW-1. This call was made deliberately to escape from the room where he was locked. This evidence was corroborated by PW-10 who was working as an operator at that time in the police control room. After getting the information of commotion from PW-9, PW-10 passed on the message to the Sub-Inspector (PW-7) who was on patrolling duty. Accordingly, PW-7 proceeded to the place of alleged occurrence. Since nobody was there in the said place, PW-7 contacted the mobile number of the informer disclosing his identity but the same was instantly disconnected. This is evident from Ex.P.12. The said mobile number belongs to the deceased constable. The evidence of PW-7, PW-9 and PW-10 corroborated with each other in this regard. It appears that the accused had made a call to the control room by using the mobile phone of the deceased just to divert the attention of the police so that he could escape in case the locked door was opened. Perusal of Ex.P.10 shows that on receipt of the phone call, an ambulance was sent to the Street, near Kalyan Silks, which came back after waiting from 3.30 a.m. to 4.30 a.m. as nobody was found injured at the place of commotion. 12. Perusal of the evidence in its entirety clearly shows that the offence had taken place at 2.00 a.m. by which time PW-1 had already left the place of occurrence and at the relevant point of time the accused and the deceased were alone inside the premises of the office of the Video Piracy Cell. Under the above circumstance, it was for the accused to explain under what circumstances the deceased was dead. In our view, the accused has failed to offer any cogent explanation in this regard. We are of the view that the chain of circumstances has been completely proved and established beyond reasonable doubt. Therefore, we find no reason to interfere with the concurrent findings of the courts below. | 0[ds]7. We have carefully considered the submission of the learned counsel for the parties and perused the impugned judgment and other materials placed on record.8. It is not in dispute that the appellant/accused was arrested by the then Sub-Inspector of Police (PW-1), Video Piracy Cell, at 7.30 p.m. on 09.09.2005 and at that time the deceased was with him. The evidence of PW-1 discloses that at the relevant point of time, the deceased did not have any residence. Therefore, he requested PW-1 to permit him to stay in the office (Video Piracy Cell) along with the accused where the accused was brought. PW-6 has stated that till 2.00 a.m. on 10.09.2005, PW-1 was in the office and later on left the office leaving the deceased constable and the accused inside the office by locking the door from outside as per the request of the deceased. This version of PW-1 has not been challenged in the cross-examination.9. Since the office premises was not shown in the rough sketch (Ex.P.22), the evidence of PW-6 was also questioned. However, this is nothing but an irregularity on the part of the I.O. PW-6 has categorically stated that he did not have residence in the nearby place. Therefore, he remained at the office to finish his pending work. Keeping in mind the above situation, we are of the view that the evidence of PW-6 cannot be doubted and if the same is accepted, the story concocted by the accused that the deceased was murdered by PW-1 is only to falsely implicate PW-1.10. The evidence adduced by PW-1 was also corroborated by the evidence of the Head Constable (PW-2) who was accompanying PW-1 at around 7.30 a.m. on 10.09.2005. It is clear from the evidence of PW-2 that when PW-1 opened the locked door, the accused tried to escape but was caught at the spot. This deposition has also remained unchallenged in the cross-examination.11. It is in the evidence of PW-9 that on 10.09.2005 around 2.30 a.m. she was on duty of receiving PCR calls. She deposed that on that day she received a call from the accused who informed about some commotion said to have taken place in 6 th Street on 100 feet road, near Kalyan Silks. The accused did not call to attribute the commission of the offence to PW-1. This call was made deliberately to escape from the room where he was locked. This evidence was corroborated by PW-10 who was working as an operator at that time in the police control room. After getting the information of commotion from PW-9, PW-10 passed on the message to the Sub-Inspector (PW-7) who was on patrolling duty. Accordingly, PW-7 proceeded to the place of alleged occurrence. Since nobody was there in the said place, PW-7 contacted the mobile number of the informer disclosing his identity but the same was instantly disconnected. This is evident from Ex.P.12. The said mobile number belongs to the deceased constable. The evidence of PW-7, PW-9 and PW-10 corroborated with each other in this regard. It appears that the accused had made a call to the control room by using the mobile phone of the deceased just to divert the attention of the police so that he could escape in case the locked door was opened. Perusal of Ex.P.10 shows that on receipt of the phone call, an ambulance was sent to the Street, near Kalyan Silks, which came back after waiting from 3.30 a.m. to 4.30 a.m. as nobody was found injured at the place of commotion.12. Perusal of the evidence in its entirety clearly shows that the offence had taken place at 2.00 a.m. by which time PW-1 had already left the place of occurrence and at the relevant point of time the accused and the deceased were alone inside the premises of the office of the Video Piracy Cell. Under the above circumstance, it was for the accused to explain under what circumstances the deceased was dead. In our view, the accused has failed to offer any cogent explanation in this regard. We are of the view that the chain of circumstances has been completely proved and established beyond reasonable doubt. Therefore, we find no reason to interfere with the concurrent findings of the courts below. | 0 | 1,332 | 779 | ### Instruction:
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of 2006. The appellant pleaded not guilty and claimed trial. After considering the arguments and analysing the evidence on record, the learned Additional Sessions Judge convicted the appellant for the offences punishable under Section 302 of I.P.C. and under Sections 224 r/w 511 of I.P.C. and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.500/-. Further, in default thereof to undergo rigorous imprisonment for one month for the offence under Section 302 of I.P.C. and to undergo rigorous imprisonment for one year for the offence under Section 224 r/w 511 of I.P.C. 4. Aggrieved by the order of conviction, the appellant appealed before the High Court being Crl. Appeal No.508 of 2007. On 26.02.2008, the Division Bench of the High Court after thorough analysis of facts and circumstances confirmed the conviction of the appellant and dismissed the appeal. Being aggrieved the appellant has approached this Court by way of Special Leave to Appeal (Crl.) No.4700/2009. 5. The learned Counsel Mr. V. Ramasubramanian, appearing on behalf of the appellant, has contended that the case of the prosecution is based upon circumstantial evidence alleging that there is no circumstance pointed out by the prosecution to prove the guilt of the accused-appellant beyond all reasonable doubt. Thus, he argues that the conviction on the basis of the assumptions is not sustainable in law. 6. On the other hand, the learned Counsel Mr. M. Yogesh Kanna appearing on behalf of the State while supporting the judgment of the High Court, has contended that this Court should take a wholesome view instead of viewing circumstances in isolation in order to conclude whether a complete chain of events has been proved by the prosecution or not. 7. We have carefully considered the submission of the learned counsel for the parties and perused the impugned judgment and other materials placed on record. 8. It is not in dispute that the appellant/accused was arrested by the then Sub-Inspector of Police (PW-1), Video Piracy Cell, at 7.30 p.m. on 09.09.2005 and at that time the deceased was with him. The evidence of PW-1 discloses that at the relevant point of time, the deceased did not have any residence. Therefore, he requested PW-1 to permit him to stay in the office (Video Piracy Cell) along with the accused where the accused was brought. PW-6 has stated that till 2.00 a.m. on 10.09.2005, PW-1 was in the office and later on left the office leaving the deceased constable and the accused inside the office by locking the door from outside as per the request of the deceased. This version of PW-1 has not been challenged in the cross-examination. 9. Since the office premises was not shown in the rough sketch (Ex.P.22), the evidence of PW-6 was also questioned. However, this is nothing but an irregularity on the part of the I.O. PW-6 has categorically stated that he did not have residence in the nearby place. Therefore, he remained at the office to finish his pending work. Keeping in mind the above situation, we are of the view that the evidence of PW-6 cannot be doubted and if the same is accepted, the story concocted by the accused that the deceased was murdered by PW-1 is only to falsely implicate PW-1. 10. The evidence adduced by PW-1 was also corroborated by the evidence of the Head Constable (PW-2) who was accompanying PW-1 at around 7.30 a.m. on 10.09.2005. It is clear from the evidence of PW-2 that when PW-1 opened the locked door, the accused tried to escape but was caught at the spot. This deposition has also remained unchallenged in the cross-examination. 11. It is in the evidence of PW-9 that on 10.09.2005 around 2.30 a.m. she was on duty of receiving PCR calls. She deposed that on that day she received a call from the accused who informed about some commotion said to have taken place in 6 th Street on 100 feet road, near Kalyan Silks. The accused did not call to attribute the commission of the offence to PW-1. This call was made deliberately to escape from the room where he was locked. This evidence was corroborated by PW-10 who was working as an operator at that time in the police control room. After getting the information of commotion from PW-9, PW-10 passed on the message to the Sub-Inspector (PW-7) who was on patrolling duty. Accordingly, PW-7 proceeded to the place of alleged occurrence. Since nobody was there in the said place, PW-7 contacted the mobile number of the informer disclosing his identity but the same was instantly disconnected. This is evident from Ex.P.12. The said mobile number belongs to the deceased constable. The evidence of PW-7, PW-9 and PW-10 corroborated with each other in this regard. It appears that the accused had made a call to the control room by using the mobile phone of the deceased just to divert the attention of the police so that he could escape in case the locked door was opened. Perusal of Ex.P.10 shows that on receipt of the phone call, an ambulance was sent to the Street, near Kalyan Silks, which came back after waiting from 3.30 a.m. to 4.30 a.m. as nobody was found injured at the place of commotion. 12. Perusal of the evidence in its entirety clearly shows that the offence had taken place at 2.00 a.m. by which time PW-1 had already left the place of occurrence and at the relevant point of time the accused and the deceased were alone inside the premises of the office of the Video Piracy Cell. Under the above circumstance, it was for the accused to explain under what circumstances the deceased was dead. In our view, the accused has failed to offer any cogent explanation in this regard. We are of the view that the chain of circumstances has been completely proved and established beyond reasonable doubt. Therefore, we find no reason to interfere with the concurrent findings of the courts below.
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7. We have carefully considered the submission of the learned counsel for the parties and perused the impugned judgment and other materials placed on record.8. It is not in dispute that the appellant/accused was arrested by the then Sub-Inspector of Police (PW-1), Video Piracy Cell, at 7.30 p.m. on 09.09.2005 and at that time the deceased was with him. The evidence of PW-1 discloses that at the relevant point of time, the deceased did not have any residence. Therefore, he requested PW-1 to permit him to stay in the office (Video Piracy Cell) along with the accused where the accused was brought. PW-6 has stated that till 2.00 a.m. on 10.09.2005, PW-1 was in the office and later on left the office leaving the deceased constable and the accused inside the office by locking the door from outside as per the request of the deceased. This version of PW-1 has not been challenged in the cross-examination.9. Since the office premises was not shown in the rough sketch (Ex.P.22), the evidence of PW-6 was also questioned. However, this is nothing but an irregularity on the part of the I.O. PW-6 has categorically stated that he did not have residence in the nearby place. Therefore, he remained at the office to finish his pending work. Keeping in mind the above situation, we are of the view that the evidence of PW-6 cannot be doubted and if the same is accepted, the story concocted by the accused that the deceased was murdered by PW-1 is only to falsely implicate PW-1.10. The evidence adduced by PW-1 was also corroborated by the evidence of the Head Constable (PW-2) who was accompanying PW-1 at around 7.30 a.m. on 10.09.2005. It is clear from the evidence of PW-2 that when PW-1 opened the locked door, the accused tried to escape but was caught at the spot. This deposition has also remained unchallenged in the cross-examination.11. It is in the evidence of PW-9 that on 10.09.2005 around 2.30 a.m. she was on duty of receiving PCR calls. She deposed that on that day she received a call from the accused who informed about some commotion said to have taken place in 6 th Street on 100 feet road, near Kalyan Silks. The accused did not call to attribute the commission of the offence to PW-1. This call was made deliberately to escape from the room where he was locked. This evidence was corroborated by PW-10 who was working as an operator at that time in the police control room. After getting the information of commotion from PW-9, PW-10 passed on the message to the Sub-Inspector (PW-7) who was on patrolling duty. Accordingly, PW-7 proceeded to the place of alleged occurrence. Since nobody was there in the said place, PW-7 contacted the mobile number of the informer disclosing his identity but the same was instantly disconnected. This is evident from Ex.P.12. The said mobile number belongs to the deceased constable. The evidence of PW-7, PW-9 and PW-10 corroborated with each other in this regard. It appears that the accused had made a call to the control room by using the mobile phone of the deceased just to divert the attention of the police so that he could escape in case the locked door was opened. Perusal of Ex.P.10 shows that on receipt of the phone call, an ambulance was sent to the Street, near Kalyan Silks, which came back after waiting from 3.30 a.m. to 4.30 a.m. as nobody was found injured at the place of commotion.12. Perusal of the evidence in its entirety clearly shows that the offence had taken place at 2.00 a.m. by which time PW-1 had already left the place of occurrence and at the relevant point of time the accused and the deceased were alone inside the premises of the office of the Video Piracy Cell. Under the above circumstance, it was for the accused to explain under what circumstances the deceased was dead. In our view, the accused has failed to offer any cogent explanation in this regard. We are of the view that the chain of circumstances has been completely proved and established beyond reasonable doubt. Therefore, we find no reason to interfere with the concurrent findings of the courts below.
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THE MAYOR JAIPUR MUNICIPAL CORPORATION & ANR Vs. THAKUR SHIV RAJ SINGH & ORS | for constructing commercial- cum-residential complex.6. That the respondents No 2 & 3 vide order bearing No.F.13/At.Mu.N.Niyo./ dated 22.02.2003 directed to deposit an amount of 1,01,04,672/- towards conversion charges. The copy of the aforesaid order dated 22.02.2003 is being enclosed herewith and marked as Annexure.2.7. That in pursuance of the aforesaid order passed by the respondents No.2 & 3, the humble petitioners reserving their rights deposited the amount so demanded i.e. a sum of Rs.1,01,04,672/- through pay order dated 20.03.2003 drawn on City Bank, M.I.Road, Jaipur vide duly filled challan dated 16.1.2003/20.3.2003 under Covering Letter dated 20.3.2003. Consequently, receipt dated 20.3.2003 was issued from office of respondents No.2 & 3 in proof of said amount having been duly deposited. The photocopy of the Covering letter dated 20.3.2003 along with receipt dated 20.3.2003 and challan dated 16.1.2003/20.3.2003 are being enclosed herewith and collectively marked as Annexure-3.?18. The above pleading of the respondents only indicates that when they intended to construct multi- storeyed building for commercial-cum-residential complex they were told to deposit conversion charges as a condition precedent for sanction map. Learned Single Judge in its judgment had noted that the respondents intended to deposit conversion charges for the land use as commercial-cum-residential complex. The submission of the learned counsel for the respondents that they were forced to apply for conversion of land use from residential to commercial does not commend us. Whether the respondents were liable to deposit the conversion charges is to be determined in accordance with the statutory Scheme and statutory requirement. In the event, under the Statute they were obliged to obtain conversion of land use from residential to commercial, they were bound to do the same and the fact that they were asked by the Corporation to do the same is inconsequential.19. The Division Bench in the impugned judgment has been unduly led by the fact that land which was purchased in the year 1959 is being used for commercial purpose. The Division Bench did not advert to sub-section (2) of Section 173-A as amended by Act 19 of 1999 and its consequences. The total consideration of the Division Bench on the entire case is in paragraph Nos.7, 8 and 9 which are to the following effect:?7. We have gone through the property document which shows that the land was purchased in the year 1959 and the same property was used by the company for commercial purposes. In our considered opinion, with a view to avoid any delay in their construction activities, the appellants have paid the amount under protest to the respondents.8. In that view of the matter, respondents are not entitled for conversion charges and the amount deposited by the appellants is required to be refunded with immediate effect.9. The respondents are directed to refund the said amount alongwith interest @ 6% within a period of three months from today. If the payment is not made within a period of three months, the appellants will be entitled for interest @ 9% and difference of 3% will be recovered from the officer who has made delay in making payment.?20. We are of the view that the Division Bench did not consider the issues raised in the appeal in the correct perspective and has not adverted to the effect and operation of the statutory Scheme as delineated by sub-section (2) of Section 173-A as amended by Act 19 of 1999. The judgment of the Division Bench, thus, cannot be upheld.21. We may also notice that this Court in Municipal Corporation, Rajasthan (supra)although had allowed the appeal but gave liberty to the respondents to take up the issue before the Corporation regarding land use in the Master Plan which was in operation at the relevant time. In paragraph No.14 of the judgment, following has been observed:?14. The learned Counsel appearing for the respondents, however, submitted that the area in question is notified as commercial area under the Master Plan and, therefore, there is no question of any conversion of the residential property to commercial. We notice that this point was not raised before the High Court and we are, therefore, not called upon to decide that question. However, the Respondents, if so advised, may take up this issue before the Corporation and it is for the Corporation to consider that issue in accordance with law. Appeals are accordingly allowed and the judgments of the High Court are set aside. However, there will be no order as to costs.?22. In the present case, learned Single Judge has made following observation:?It is also not disputed that in the Master Plan area in question is ear marked for commercial use and it is also not disputed the earlier the area in question is used for commercial purpose. Therefore, the petitioner moved application for conversion for approval of map for constructing a commercial building.?23. Although learned Single Judge made the above observation, but the judgment does not indicate that said observations were made after looking into the Master Plan which was in force at the time of submission of application by the respondents.24. The Division Bench did not advert to either sub- section (2) of Section 173-A or to the land use in the Master Plan at the relevant time, i.e., in the year 2002 when the respondents made an application for sanction of building plan. The appellants although have brought on record the Land Use Plan 2011, which is in force w.e.f. 01.09.1998 along with their rejoinder-affidavit but since during the submission learned counsel for the respondents has contended that the said Land Use Plan 2011 does not conclusively establish that land use of Plot No.21 was residential, we are, thus, of the view that ends of justice shall be served in giving liberty to the respondents to submit a representation before the Corporation, if there are any materials and grounds that in the Master Plan which was in operation in the year 2002, when respondents submitted an application that land use of Plot No.21, Lal Niwas was not residential but commercial. | 1[ds]10. The demand for conversion charges having been raised in the present case in the year 2002, the provisions of Section 173-A as amended by Act 19 of 1999 are applicable in the present case. A perusal of unamended and amended Section 173-A indicates that there is substantial change in the statutory provision of Rajasthan Municipalities Act, 1959. Prior to amendment, the power of the State Government to allow the change in the use of land was confined to a land allotted or sold by Municipality or the State Government. The amended Section 173-A has not only changed heading of the Section but contents also. Section 173-A as amended contains restriction on use of land. Both sub-section (1) and sub-section (2) of Section 173-A now contain a restriction on both the categories of land, i.e., (i) originally allotted or sold by the State Government, any Municipality and other local authority or any other body or legal authority; (ii) in the case of any land not allotted or sold and not covered under sub- section (1). The restriction is that no person shall use or permit the use of any such land situated in a municipal area other than that for which such land use was or is permissible, in accordance with the Master Plan, wherever it is in operation. The amended provision of Section 173-Ahas been brought on the Statute book to ensure planned development of a municipal area. Master Plans are to be prepared according to the statutory Scheme keeping in view the future developments of the city and the municipal area. A clear distinction between the statutory Scheme under Section 173-A, unamended and amended, is visible. Earlier the restriction was there only with regard to land, which has been allotted or sold to any person by a Municipality or the State that too restriction for land use for any other purpose other than the purpose for which it was originally allotted or sold. After the amendment restriction is with regard to the land use as provided in Master Plan. Even if prior to amendment in Section 173-A, a person holding the land which was neither allotted nor sold to it by Municipality or State could have used the land for any purpose, the restriction has now been placed by amended Section 173-A. In the facts of the present case, even though prior to amendment of Section 173-A the respondents were using the land for commercial purposes that user is prohibited by virtue of restriction brought by amended Section 173-A(2) for using the land for a purpose other than one which is permitted under Master Plan, permission of State or any authority authorised by it, is required as provided by sub-section (3) of Section 173-A.We need to notice the land use as permissible in the Master Plan, which was in operation at therelevant time when respondents submitted an application for sanction of building plan for commercial-cum-residential complex.We may also notice one of the submissions vehemently raised by the learned counsel for the respondents that the respondents were forced to deposit the conversion charges, which they deposited under the protest. The copy of the writ petition filed by the respondents has been brought on record as Annexure-P/12. In paragraph Nos. 5,6 and 7, following has been pleaded by theThat the petitioners intended to get the aforesaid plot of land admeasuring 10067.14 sq.yards which is equivalent to 8420.56 sq. meters, developed by constructing a multi-storeyed commercial-cum-residential complex. In this connection, on having been asked to apply with them for land use conversion as a condition precedent so that maps of building plans can be approved for constructing commercial- cum-residential complex.That the respondents No 2 & 3 vide order bearing No.F.13/At.Mu.N.Niyo./ dated 22.02.2003 directed to deposit an amount of 1,01,04,672/- towards conversion charges. The copy of the aforesaid order dated 22.02.2003 is being enclosed herewith and marked as Annexure.2.That in pursuance of the aforesaid order passed by the respondents No.2 & 3, the humble petitioners reserving their rights deposited the amount so demanded i.e. a sum of Rs.1,01,04,672/- through pay order dated 20.03.2003 drawn on City Bank, M.I.Road, Jaipur vide duly filled challan dated 16.1.2003/20.3.2003 under Covering Letter dated 20.3.2003. Consequently, receipt dated 20.3.2003 was issued from office of respondents No.2 & 3 in proof of said amount having been duly deposited. The photocopy of the Covering letter dated 20.3.2003 along with receipt dated 20.3.2003 and challan dated 16.1.2003/20.3.2003 are being enclosed herewith and collectively marked as Annexure-3.The above pleading of the respondents only indicates that when they intended to construct multi- storeyed building for commercial-cum-residential complex they were told to deposit conversion charges as a condition precedent for sanction map. Learned Single Judge in its judgment had noted that the respondents intended to deposit conversion charges for the land use as commercial-cum-residential complex. The submission of the learned counsel for the respondents that they were forced to apply for conversion of land use from residential to commercial does not commend us. Whether the respondents were liable to deposit the conversion charges is to be determined in accordance with the statutory Scheme and statutory requirement. In the event, under the Statute they were obliged to obtain conversion of land use from residential to commercial, they were bound to do the same and the fact that they were asked by the Corporation to do the same is inconsequential.The Division Bench in the impugned judgment has been unduly led by the fact that land which was purchased in the year 1959 is being used for commercial purpose. The Division Bench did not advert to sub-section (2) of Section 173-A as amended by Act 19 of 1999 and its consequences. The total consideration of the Division Bench on the entire case is in paragraph Nos.7, 8 and 9 which are to the followingWe have gone through the property document which shows that the land was purchased in the year 1959 and the same property was used by the company for commercial purposes. In our considered opinion, with a view to avoid any delay in their construction activities, the appellants have paid the amount under protest to the respondents.In that view of the matter, respondents are not entitled for conversion charges and the amount deposited by the appellants is required to be refunded with immediate effect.The respondents are directed to refund the said amount alongwith interest @ 6% within a period of three months from today. If the payment is not made within a period of three months, the appellants will be entitled for interest @ 9% and difference of 3% will be recovered from the officer who has made delay in making payment.We are of the view that the Division Bench did not consider the issues raised in the appeal in the correct perspective and has not adverted to the effect and operation of the statutory Scheme as delineated by sub-section (2) of Section 173-A as amended by Act 19 of 1999. The judgment of the Division Bench, thus, cannot be upheld.In the present case, learned Single Judge has made followingis also not disputed that in the Master Plan area in question is ear marked for commercial use and it is also not disputed the earlier the area in question is used for commercial purpose. Therefore, the petitioner moved application for conversion for approval of map for constructing a commercial building.Although learned Single Judge made the above observation, but the judgment does not indicate that said observations were made after looking into the Master Plan which was in force at the time of submission of application by the respondents.The Division Bench did not advert to either sub- section (2) of Section 173-A or to the land use in the Master Plan at the relevant time, i.e., in the year 2002 when the respondents made an application for sanction of building plan.The Division Bench did not advert to either sub- section (2) of Section 173-A or to the land use in the Master Plan at the relevant time, i.e., in the year 2002 when the respondents made an application for sanction of building plan.The appellants although have brought on record the Land Use Plan 2011, which is in force w.e.f. 01.09.1998 along with their rejoinder-affidavit but since during the submission learned counsel for the respondents has contended that the said Land Use Plan 2011 does not conclusively establish that land use of Plot No.21 was residential, we are, thus, of the view that ends of justice shall be served in giving liberty to the respondents to submit a representation before the Corporation, if there are any materials and grounds that in the Master Plan which was in operation in the year 2002, when respondents submitted an application that land use of Plot No.21, Lal Niwas was not residential but commercial. | 1 | 5,386 | 1,579 | ### Instruction:
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for constructing commercial- cum-residential complex.6. That the respondents No 2 & 3 vide order bearing No.F.13/At.Mu.N.Niyo./ dated 22.02.2003 directed to deposit an amount of 1,01,04,672/- towards conversion charges. The copy of the aforesaid order dated 22.02.2003 is being enclosed herewith and marked as Annexure.2.7. That in pursuance of the aforesaid order passed by the respondents No.2 & 3, the humble petitioners reserving their rights deposited the amount so demanded i.e. a sum of Rs.1,01,04,672/- through pay order dated 20.03.2003 drawn on City Bank, M.I.Road, Jaipur vide duly filled challan dated 16.1.2003/20.3.2003 under Covering Letter dated 20.3.2003. Consequently, receipt dated 20.3.2003 was issued from office of respondents No.2 & 3 in proof of said amount having been duly deposited. The photocopy of the Covering letter dated 20.3.2003 along with receipt dated 20.3.2003 and challan dated 16.1.2003/20.3.2003 are being enclosed herewith and collectively marked as Annexure-3.?18. The above pleading of the respondents only indicates that when they intended to construct multi- storeyed building for commercial-cum-residential complex they were told to deposit conversion charges as a condition precedent for sanction map. Learned Single Judge in its judgment had noted that the respondents intended to deposit conversion charges for the land use as commercial-cum-residential complex. The submission of the learned counsel for the respondents that they were forced to apply for conversion of land use from residential to commercial does not commend us. Whether the respondents were liable to deposit the conversion charges is to be determined in accordance with the statutory Scheme and statutory requirement. In the event, under the Statute they were obliged to obtain conversion of land use from residential to commercial, they were bound to do the same and the fact that they were asked by the Corporation to do the same is inconsequential.19. The Division Bench in the impugned judgment has been unduly led by the fact that land which was purchased in the year 1959 is being used for commercial purpose. The Division Bench did not advert to sub-section (2) of Section 173-A as amended by Act 19 of 1999 and its consequences. The total consideration of the Division Bench on the entire case is in paragraph Nos.7, 8 and 9 which are to the following effect:?7. We have gone through the property document which shows that the land was purchased in the year 1959 and the same property was used by the company for commercial purposes. In our considered opinion, with a view to avoid any delay in their construction activities, the appellants have paid the amount under protest to the respondents.8. In that view of the matter, respondents are not entitled for conversion charges and the amount deposited by the appellants is required to be refunded with immediate effect.9. The respondents are directed to refund the said amount alongwith interest @ 6% within a period of three months from today. If the payment is not made within a period of three months, the appellants will be entitled for interest @ 9% and difference of 3% will be recovered from the officer who has made delay in making payment.?20. We are of the view that the Division Bench did not consider the issues raised in the appeal in the correct perspective and has not adverted to the effect and operation of the statutory Scheme as delineated by sub-section (2) of Section 173-A as amended by Act 19 of 1999. The judgment of the Division Bench, thus, cannot be upheld.21. We may also notice that this Court in Municipal Corporation, Rajasthan (supra)although had allowed the appeal but gave liberty to the respondents to take up the issue before the Corporation regarding land use in the Master Plan which was in operation at the relevant time. In paragraph No.14 of the judgment, following has been observed:?14. The learned Counsel appearing for the respondents, however, submitted that the area in question is notified as commercial area under the Master Plan and, therefore, there is no question of any conversion of the residential property to commercial. We notice that this point was not raised before the High Court and we are, therefore, not called upon to decide that question. However, the Respondents, if so advised, may take up this issue before the Corporation and it is for the Corporation to consider that issue in accordance with law. Appeals are accordingly allowed and the judgments of the High Court are set aside. However, there will be no order as to costs.?22. In the present case, learned Single Judge has made following observation:?It is also not disputed that in the Master Plan area in question is ear marked for commercial use and it is also not disputed the earlier the area in question is used for commercial purpose. Therefore, the petitioner moved application for conversion for approval of map for constructing a commercial building.?23. Although learned Single Judge made the above observation, but the judgment does not indicate that said observations were made after looking into the Master Plan which was in force at the time of submission of application by the respondents.24. The Division Bench did not advert to either sub- section (2) of Section 173-A or to the land use in the Master Plan at the relevant time, i.e., in the year 2002 when the respondents made an application for sanction of building plan. The appellants although have brought on record the Land Use Plan 2011, which is in force w.e.f. 01.09.1998 along with their rejoinder-affidavit but since during the submission learned counsel for the respondents has contended that the said Land Use Plan 2011 does not conclusively establish that land use of Plot No.21 was residential, we are, thus, of the view that ends of justice shall be served in giving liberty to the respondents to submit a representation before the Corporation, if there are any materials and grounds that in the Master Plan which was in operation in the year 2002, when respondents submitted an application that land use of Plot No.21, Lal Niwas was not residential but commercial.
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in the Master Plan, which was in operation at therelevant time when respondents submitted an application for sanction of building plan for commercial-cum-residential complex.We may also notice one of the submissions vehemently raised by the learned counsel for the respondents that the respondents were forced to deposit the conversion charges, which they deposited under the protest. The copy of the writ petition filed by the respondents has been brought on record as Annexure-P/12. In paragraph Nos. 5,6 and 7, following has been pleaded by theThat the petitioners intended to get the aforesaid plot of land admeasuring 10067.14 sq.yards which is equivalent to 8420.56 sq. meters, developed by constructing a multi-storeyed commercial-cum-residential complex. In this connection, on having been asked to apply with them for land use conversion as a condition precedent so that maps of building plans can be approved for constructing commercial- cum-residential complex.That the respondents No 2 & 3 vide order bearing No.F.13/At.Mu.N.Niyo./ dated 22.02.2003 directed to deposit an amount of 1,01,04,672/- towards conversion charges. The copy of the aforesaid order dated 22.02.2003 is being enclosed herewith and marked as Annexure.2.That in pursuance of the aforesaid order passed by the respondents No.2 & 3, the humble petitioners reserving their rights deposited the amount so demanded i.e. a sum of Rs.1,01,04,672/- through pay order dated 20.03.2003 drawn on City Bank, M.I.Road, Jaipur vide duly filled challan dated 16.1.2003/20.3.2003 under Covering Letter dated 20.3.2003. Consequently, receipt dated 20.3.2003 was issued from office of respondents No.2 & 3 in proof of said amount having been duly deposited. The photocopy of the Covering letter dated 20.3.2003 along with receipt dated 20.3.2003 and challan dated 16.1.2003/20.3.2003 are being enclosed herewith and collectively marked as Annexure-3.The above pleading of the respondents only indicates that when they intended to construct multi- storeyed building for commercial-cum-residential complex they were told to deposit conversion charges as a condition precedent for sanction map. Learned Single Judge in its judgment had noted that the respondents intended to deposit conversion charges for the land use as commercial-cum-residential complex. The submission of the learned counsel for the respondents that they were forced to apply for conversion of land use from residential to commercial does not commend us. Whether the respondents were liable to deposit the conversion charges is to be determined in accordance with the statutory Scheme and statutory requirement. In the event, under the Statute they were obliged to obtain conversion of land use from residential to commercial, they were bound to do the same and the fact that they were asked by the Corporation to do the same is inconsequential.The Division Bench in the impugned judgment has been unduly led by the fact that land which was purchased in the year 1959 is being used for commercial purpose. The Division Bench did not advert to sub-section (2) of Section 173-A as amended by Act 19 of 1999 and its consequences. The total consideration of the Division Bench on the entire case is in paragraph Nos.7, 8 and 9 which are to the followingWe have gone through the property document which shows that the land was purchased in the year 1959 and the same property was used by the company for commercial purposes. In our considered opinion, with a view to avoid any delay in their construction activities, the appellants have paid the amount under protest to the respondents.In that view of the matter, respondents are not entitled for conversion charges and the amount deposited by the appellants is required to be refunded with immediate effect.The respondents are directed to refund the said amount alongwith interest @ 6% within a period of three months from today. If the payment is not made within a period of three months, the appellants will be entitled for interest @ 9% and difference of 3% will be recovered from the officer who has made delay in making payment.We are of the view that the Division Bench did not consider the issues raised in the appeal in the correct perspective and has not adverted to the effect and operation of the statutory Scheme as delineated by sub-section (2) of Section 173-A as amended by Act 19 of 1999. The judgment of the Division Bench, thus, cannot be upheld.In the present case, learned Single Judge has made followingis also not disputed that in the Master Plan area in question is ear marked for commercial use and it is also not disputed the earlier the area in question is used for commercial purpose. Therefore, the petitioner moved application for conversion for approval of map for constructing a commercial building.Although learned Single Judge made the above observation, but the judgment does not indicate that said observations were made after looking into the Master Plan which was in force at the time of submission of application by the respondents.The Division Bench did not advert to either sub- section (2) of Section 173-A or to the land use in the Master Plan at the relevant time, i.e., in the year 2002 when the respondents made an application for sanction of building plan.The Division Bench did not advert to either sub- section (2) of Section 173-A or to the land use in the Master Plan at the relevant time, i.e., in the year 2002 when the respondents made an application for sanction of building plan.The appellants although have brought on record the Land Use Plan 2011, which is in force w.e.f. 01.09.1998 along with their rejoinder-affidavit but since during the submission learned counsel for the respondents has contended that the said Land Use Plan 2011 does not conclusively establish that land use of Plot No.21 was residential, we are, thus, of the view that ends of justice shall be served in giving liberty to the respondents to submit a representation before the Corporation, if there are any materials and grounds that in the Master Plan which was in operation in the year 2002, when respondents submitted an application that land use of Plot No.21, Lal Niwas was not residential but commercial.
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Delhi Cloth and General Mills Company, Limited Vs. Its Workmen | in the managements written statement. On a consideration of the evidence the tribunal has come to a definite finding that in fact the doffers do not need any helpers and the work which is actually done by these persons designated as doffer helpers (sic) are really working as helpers to machinemen in the doubling department. There is nothing to justify us in interfering with the findings based on evidence given before the tribunal.It is difficult to see, however, how in the other two matters the tribunal made an award in favour of the workmen. The claim for extra remuneration for having to forego half-hours rest intervals appears to be in substance a claim for the overtime payment. The tribunal has made a rather startling statement that these workmen are working continuously for 8 1/2 hours in a day. As there are only 24 hours in the day and night and there are three shifts working, it is obvious that none of the shifts work for more than 8 hours. The managements case is that the wages of these workmen are fixed having due regard to this fact that in view of the nature of their work they would be working for 8 hours at a stretch without the half-hours rest interval admissible to other workmen. This appears to us to be extremely likely, and no evidence has been given on the side of the workmen to show that the wages were fixed on the basis that these workmen would have this half-hours rest interval.5. It may be mentioned that rules were framed by Government exempting the management from the operation of the legal provisions of the Factories Act that such rest must be given. At the hearing before us it was sought to be argued on behalf of the respondents that no such exemption was in force at the time of the award. It has to be mentioned however that in the statement of claim on behalf of the workmen it was definitely stated that"the management has obtained exemption from the Inspector of Factories under S.64(2) of the Factories Act, to be allowed to run the department without giving them half-hours rest interval."6. The case that no such exemption was in force at the time of the award cannot therefore be allowed to be raised now. We are therefore of opinion that the power plant operatives are not entitled to any extra remuneration for having to forego half-hours rest interval.The dispute as regards creelers is whether the Bombay scheme of standardized wage rates has been implemented in respect of such creelers working on plain and high-speed warping machines. There appears to be no dispute that the wage-rates of the Bombay scheme as it was in force at the time of the agreement between the management and the workmen in 1949 is being implemented. The workmens case appears to be that when the time-rates of these creelers were revised in Bombay with effect from November 1955 the appellants were also bound to apply the revised rates to the creelers working in their Mills. The decision of this question depends on the terms of the agreement. All that we find stated in the agreement regarding this is in these terms :"With regard to the standardization of wages in all occupations, the Bombay standardization scheme is accepted in toto."7. Without anything more the agreement must therefore be held to be for the acceptance of the Bombay standardization scheme as it stood on the date of the agreement, viz., 27 February, 1949. It was sought to be argued on behalf of the workmen that the intention of the parties was that effect would also be given to any change that might take place after the date of the agreement. We are unable to find any force in this contention. The tribunal has supported its conclusion that the creelers would be entitled to the revised rates in the Bombay scheme from one paragraph in the compromise award between the parties dated 19 July, 1956. This paragraph runs thus :"Notwithstanding that the management had accepted in toto only the wage-rates prescribed under Bombay Standardization of Wages award and had not undertaken to endorse the wage-rates from the dates from which they were enforced at Bombay (being not party to that award), the management agrees, in order to provide goodwill and cordial labour-management relations, to enforce, as a special case, the wage-rates with effect from January 1951 in respect of workers employed in the engineering (machine and electric department). This however will not form a precedent for future or give a right to the workers for claiming the enforcement of the entire Bombay Standardization of Wages award or any subsequent or supplimentary awards relating to the textile industry of Bombay with effect from the date from which they are, have been, or may hereafter be enforce at Bombay."We are unable to see anything in the words of the compromise that would justify the conclusion that the management agreed that revised wage-rates would be applied to their workmen in all categories as in the Bombay scheme. The mere fact that in one particular case the management agreed as a matter of compromise to apply revised wage-rates of the Bombay scheme does not justify such a conclusion. On the contrary, the fact that this agreement to apply revised wage-rates in respect of certain workmen was specifically mentioned to be "a special case" clearly proceeds on the basis that the original agreement was to apply the Bombay scheme as it stood on the date of the agreement. It may be that in the case mentioned in the compromise award of 19 July, 1956 and in some other cases the appellants have applied the revised Bombay scheme; that would not give the workmen in other departments also a right in law to the revised rates of the Bombay scheme. The tribunals conclusion that the Bombay scheme as agreed to was not being implemented as regards the creelers cannot therefore be sustained." | 1[ds]It seems to us however that as the Bombay scheme proceeds on the basis that the two looms are the normal assignment of one weaver, it can have no application to such looms of which the normal assignment is different. We can see no justification for introducing into the scheme a deeming provision that a person working on one Turkish Towel loom should be deemed to be working on two ordinary looms or that a person working on one Turkish Towel loom and one ordinary loom should be deemed to be working on three ordinary looms or that a person working on two Turkish Towel looms should be deemed to be working on four ordinary looms. There is no scope in law or commonsense for the introduction of such a deeming provision into the Bombayis not possible for us, therefore, to accept Mr. Sastris contention that thefor Turkish Towel looms are liable to deduction because improvements have been introduced by the management. Incidentally, we may point out that if as a result of improvements made in the machinery the workmen are able to attend to more looms and then produce a larger number of towels, that can hardly justify any deduction in their wages when the wages are fixed on abasis. It is the very essence ofwages that the more the production by the workman, the proportionately larger would be his wages, subject to such conditions as may be prescribed in thatis faintly argued by Mr. Sastri on the basis of a recommendation in Para. 1 of the Wage Board which has been accepted by the Government that for a period of five years from 1 January, 1960 no scheme for further revision of minimum wages should be made by either the management or the workmen. Mr. Sastri was constrained to concede, however, that this recommendation cannot in any way affect the present award made in a reference made on 24 November, 1955. We find no justification, therefore, for interfering with the tribunals award on this question of deduction from theearnings for weavers working on Turkish Towelis nothing to justify us in interfering with the findings based on evidence given before the tribunal.It is difficult to see, however, how in the other two matters the tribunal made an award in favour of the workmen. The claim for extra remuneration for having to foregorest intervals appears to be in substance a claim for the overtime payment. The tribunal has made a rather startling statement that these workmen are working continuously for 8 1/2 hours in a day. As there are only 24 hours in the day and night and there are three shifts working, it is obvious that none of the shifts work for more than 8 hours. The managements case is that the wages of these workmen are fixed having due regard to this fact that in view of the nature of their work they would be working for 8 hours at a stretch without therest interval admissible to other workmen. This appears to us to be extremely likely, and no evidence has been given on the side of the workmen to show that the wages were fixed on the basis that these workmen would have this6. The case that no such exemption was in force at the time of the award cannot therefore be allowed to be raised now. We are therefore of opinion that the power plant operatives are not entitled to any extra remuneration for having to foregorest interval.The dispute as regards creelers is whether the Bombay scheme of standardized wage rates has been implemented in respect of such creelers working on plain andwarping machines. There appears to be no dispute that theof the Bombay scheme as it was in force at the time of the agreement between the management and the workmen in 1949 is being implemented. The workmens case appears to be that when theof these creelers were revised in Bombay with effect from November 1955 the appellants were also bound to apply the revised rates to the creelers working in their Mills. The decision of this question depends on the terms of the agreement. All that we find stated in the agreement regarding this is in these terms :"With regard to the standardization of wages in all occupations, the Bombay standardization scheme is accepted in toto."7. Without anything more the agreement must therefore be held to be for the acceptance of the Bombay standardization scheme as it stood on the date of the agreement, viz., 27 February, 1949. It was sought to be argued on behalf of the workmen that the intention of the parties was that effect would also be given to any change that might take place after the date of the agreement. We are unable to find any force in this contention | 1 | 2,853 | 853 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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in the managements written statement. On a consideration of the evidence the tribunal has come to a definite finding that in fact the doffers do not need any helpers and the work which is actually done by these persons designated as doffer helpers (sic) are really working as helpers to machinemen in the doubling department. There is nothing to justify us in interfering with the findings based on evidence given before the tribunal.It is difficult to see, however, how in the other two matters the tribunal made an award in favour of the workmen. The claim for extra remuneration for having to forego half-hours rest intervals appears to be in substance a claim for the overtime payment. The tribunal has made a rather startling statement that these workmen are working continuously for 8 1/2 hours in a day. As there are only 24 hours in the day and night and there are three shifts working, it is obvious that none of the shifts work for more than 8 hours. The managements case is that the wages of these workmen are fixed having due regard to this fact that in view of the nature of their work they would be working for 8 hours at a stretch without the half-hours rest interval admissible to other workmen. This appears to us to be extremely likely, and no evidence has been given on the side of the workmen to show that the wages were fixed on the basis that these workmen would have this half-hours rest interval.5. It may be mentioned that rules were framed by Government exempting the management from the operation of the legal provisions of the Factories Act that such rest must be given. At the hearing before us it was sought to be argued on behalf of the respondents that no such exemption was in force at the time of the award. It has to be mentioned however that in the statement of claim on behalf of the workmen it was definitely stated that"the management has obtained exemption from the Inspector of Factories under S.64(2) of the Factories Act, to be allowed to run the department without giving them half-hours rest interval."6. The case that no such exemption was in force at the time of the award cannot therefore be allowed to be raised now. We are therefore of opinion that the power plant operatives are not entitled to any extra remuneration for having to forego half-hours rest interval.The dispute as regards creelers is whether the Bombay scheme of standardized wage rates has been implemented in respect of such creelers working on plain and high-speed warping machines. There appears to be no dispute that the wage-rates of the Bombay scheme as it was in force at the time of the agreement between the management and the workmen in 1949 is being implemented. The workmens case appears to be that when the time-rates of these creelers were revised in Bombay with effect from November 1955 the appellants were also bound to apply the revised rates to the creelers working in their Mills. The decision of this question depends on the terms of the agreement. All that we find stated in the agreement regarding this is in these terms :"With regard to the standardization of wages in all occupations, the Bombay standardization scheme is accepted in toto."7. Without anything more the agreement must therefore be held to be for the acceptance of the Bombay standardization scheme as it stood on the date of the agreement, viz., 27 February, 1949. It was sought to be argued on behalf of the workmen that the intention of the parties was that effect would also be given to any change that might take place after the date of the agreement. We are unable to find any force in this contention. The tribunal has supported its conclusion that the creelers would be entitled to the revised rates in the Bombay scheme from one paragraph in the compromise award between the parties dated 19 July, 1956. This paragraph runs thus :"Notwithstanding that the management had accepted in toto only the wage-rates prescribed under Bombay Standardization of Wages award and had not undertaken to endorse the wage-rates from the dates from which they were enforced at Bombay (being not party to that award), the management agrees, in order to provide goodwill and cordial labour-management relations, to enforce, as a special case, the wage-rates with effect from January 1951 in respect of workers employed in the engineering (machine and electric department). This however will not form a precedent for future or give a right to the workers for claiming the enforcement of the entire Bombay Standardization of Wages award or any subsequent or supplimentary awards relating to the textile industry of Bombay with effect from the date from which they are, have been, or may hereafter be enforce at Bombay."We are unable to see anything in the words of the compromise that would justify the conclusion that the management agreed that revised wage-rates would be applied to their workmen in all categories as in the Bombay scheme. The mere fact that in one particular case the management agreed as a matter of compromise to apply revised wage-rates of the Bombay scheme does not justify such a conclusion. On the contrary, the fact that this agreement to apply revised wage-rates in respect of certain workmen was specifically mentioned to be "a special case" clearly proceeds on the basis that the original agreement was to apply the Bombay scheme as it stood on the date of the agreement. It may be that in the case mentioned in the compromise award of 19 July, 1956 and in some other cases the appellants have applied the revised Bombay scheme; that would not give the workmen in other departments also a right in law to the revised rates of the Bombay scheme. The tribunals conclusion that the Bombay scheme as agreed to was not being implemented as regards the creelers cannot therefore be sustained."
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It seems to us however that as the Bombay scheme proceeds on the basis that the two looms are the normal assignment of one weaver, it can have no application to such looms of which the normal assignment is different. We can see no justification for introducing into the scheme a deeming provision that a person working on one Turkish Towel loom should be deemed to be working on two ordinary looms or that a person working on one Turkish Towel loom and one ordinary loom should be deemed to be working on three ordinary looms or that a person working on two Turkish Towel looms should be deemed to be working on four ordinary looms. There is no scope in law or commonsense for the introduction of such a deeming provision into the Bombayis not possible for us, therefore, to accept Mr. Sastris contention that thefor Turkish Towel looms are liable to deduction because improvements have been introduced by the management. Incidentally, we may point out that if as a result of improvements made in the machinery the workmen are able to attend to more looms and then produce a larger number of towels, that can hardly justify any deduction in their wages when the wages are fixed on abasis. It is the very essence ofwages that the more the production by the workman, the proportionately larger would be his wages, subject to such conditions as may be prescribed in thatis faintly argued by Mr. Sastri on the basis of a recommendation in Para. 1 of the Wage Board which has been accepted by the Government that for a period of five years from 1 January, 1960 no scheme for further revision of minimum wages should be made by either the management or the workmen. Mr. Sastri was constrained to concede, however, that this recommendation cannot in any way affect the present award made in a reference made on 24 November, 1955. We find no justification, therefore, for interfering with the tribunals award on this question of deduction from theearnings for weavers working on Turkish Towelis nothing to justify us in interfering with the findings based on evidence given before the tribunal.It is difficult to see, however, how in the other two matters the tribunal made an award in favour of the workmen. The claim for extra remuneration for having to foregorest intervals appears to be in substance a claim for the overtime payment. The tribunal has made a rather startling statement that these workmen are working continuously for 8 1/2 hours in a day. As there are only 24 hours in the day and night and there are three shifts working, it is obvious that none of the shifts work for more than 8 hours. The managements case is that the wages of these workmen are fixed having due regard to this fact that in view of the nature of their work they would be working for 8 hours at a stretch without therest interval admissible to other workmen. This appears to us to be extremely likely, and no evidence has been given on the side of the workmen to show that the wages were fixed on the basis that these workmen would have this6. The case that no such exemption was in force at the time of the award cannot therefore be allowed to be raised now. We are therefore of opinion that the power plant operatives are not entitled to any extra remuneration for having to foregorest interval.The dispute as regards creelers is whether the Bombay scheme of standardized wage rates has been implemented in respect of such creelers working on plain andwarping machines. There appears to be no dispute that theof the Bombay scheme as it was in force at the time of the agreement between the management and the workmen in 1949 is being implemented. The workmens case appears to be that when theof these creelers were revised in Bombay with effect from November 1955 the appellants were also bound to apply the revised rates to the creelers working in their Mills. The decision of this question depends on the terms of the agreement. All that we find stated in the agreement regarding this is in these terms :"With regard to the standardization of wages in all occupations, the Bombay standardization scheme is accepted in toto."7. Without anything more the agreement must therefore be held to be for the acceptance of the Bombay standardization scheme as it stood on the date of the agreement, viz., 27 February, 1949. It was sought to be argued on behalf of the workmen that the intention of the parties was that effect would also be given to any change that might take place after the date of the agreement. We are unable to find any force in this contention
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Lalit Kumar Jain Vs. Jaipur Traders Corpn. P.Ltd | is that the bank draft for the amount of Rs. 5,000/- received from the defendants was not returned and it is not the case of the plaintiff that the draft was not credited to their account. When Shri B.D. Meattle (P.W.1) was confronted with this fact, he came forward with a peculiar explanation that the relationship was not so much strained and therefore the bank draft was not returned. If at all, this is a factor which goes in favour of the defendants rather than the plaintiff. All this would show that the plaintiff consciously agreed to honour the understanding arrived at between the Director of the Company Shri R.K. Meattle and the defendants which was reduced into writing in the form of a letter. If that agreement is true and binding, as has been held by the Trial Court, the plaintiff could not have rescinded the contract in September 1973, despite the fact that the suit filed by the Seth Shanti Lal Jain was pending and the formalities requisite for completion of registration were not completed. It may be an imprudent act on the part of Shri R.K. Meattle, going by the tenor of arrangement, but, in the absence of any allegations of collusion and mis-representation, the Court cannot disregard the agreement embodied in the letter dated 12.8.1971 which was believed by the trial Court. We are, therefore, of the view that reversal by the High Court of the trial Courts finding on this aspect is unwarranted and as already noted, is vitiated by non-consideration of the relevant material on record. This Court has, therefore, no option but to disturb the factual finding reached by the High Court. 12. One more fact which disentitles the plaintiff to the equitable relief under Section 27/31 of the Specific Relief Act is the unexplained delay in filing the suit after the exchange of notices in September 1973. Almost three years later, the suit was filed. This inaction has its own revelation. Either the plaintiff did not stand by his declaration to rescind the contract, as held by the trial Court, or the plaintiff was sitting on the fence and waiting to see whether the turn of events would be to his advantage or disadvantage. 13. If the above facts and circumstances are cumulatively considered, the plaintiff has no legitimate ground to seek the equitable remedy. While these are the factors that can be put against the plaintiff, the defendants-appellants are not free from blame. We cannot lose sight of the fact that their conduct is also open to question. The defendants, in the initial stages, insisted on income-tax clearance certificate. When the defendants were informed of the readiness of the plaintiff to hand over the ITC subject to payment of balance money within 15 days, the defendants then raised the plea of pendency of the suit of Seth Shanti Lal which was by then dismissed for default. The factum of dismissal of suit was intimated to the defendants through the notice dated 3.7.1973, though the suit was subsequently restored and was finally dismissed in the year 1978. The fact remains that the defendants who, in the initial stages, were prepared to pay the balance sale price on receipt of ITC, for reasons best known to them, dodged to make the payment on the ground of pendency of suit. Though this conduct on the part of the defendants is not above board the conduct of the plaintiff, who has sought equitable remedy, should be kept uppermost in the mind of the Court. The plaintiff seeking equitable remedy cannot approach the Court with unclean hands or be guilty of laches. Irrespective of the conduct of the defendants we must hold that the plaintiff has, for various reasons discussed, above, disentitled himself to the relief of cancellation of instrument and for recovery of possession from the defendants that too after the property was substantially developed. 14. The result of the foregoing discussion is that the suit is liable to be dismissed and it has been rightly dismissed by the trial Court. However, in view of the fact that the defendants are not free from blame as discussed above and they have utilised the property to the best of their advantage right from day one without, at the same time, paying the balance sale price for several years we put it to the counsel for the appellants whether they are willing to pay to the plaintiff a substantial amount over and above the sale price already deposited in the Court, in order to do justice to the parties. In fact, in the course of arguments by the learned counsel for the appellants, there was an indication that the appellants were prepared to offer a reasonable amount, without prejudice to their contentions. The learned counsel for the appellants has filed a letter dated 18.4.2002 stating that "the appellants can pay and agree to pay a further sum of Rs. 35 lacs (Rupees thirty five lacs) in 3 instalments of Rs. 15 lacs and Rs. 10 lacs and Rs. 10 lacs", in three weeks, by the end of August and by the end of November, 2002 respectively. When we suggested to the learned counsel that it would be fair if some more amount is offered, the learned counsel for the appellants agreed on behalf of his clients for payment of Rs. 40 lacs in lump sum within a period of six months commencing from today. Having regard to the offer made in the letter coupled with the oral representation made today and to mere out justice to the parties, we direct that the undertaking to pay the sum of Rs. 40 lacs within six months should form part of the decree in the suit. This shall be in addition to the sale price already deposited in the Court. The same shall be deposited in the Court within a period of six months and the appellants are entitled to withdraw the same in addition to the amount already deposited. | 1[ds]8. We are of the view that the High Court failed to address itself to certain crucial factors which disentitles the plaintiff to equitable relief. The High Court reversed a well considered judgment of trial Court without adverting to the reasoning of trial Court except in a cursory manner. In the view we are taking, it is not necessary for us to dilate on various legal issues debated before us. We shall proceed on the basis that in law the plaintiff could annul the contract of the sale before the act of registration got completed and title passed to the appellants. We shall further assume that the plaintiff in fact rescinded the contract with effect from the date of expiry of the time stipulated in the 4th and final notice dated 3.7.1973. If such rescission or termination of contract is not justifiable on facts or having regard to the conduct of the plaintiff, the equitable relief under Section 27 or 31 of the Specific Relief Act has to be denied to the plaintiff, no further question arises for consideration. In such a case, the appellants’ plea has to be accepted and the suit is liable to be dismissed.The result of the foregoing discussion is that the suit is liable to be dismissed and it has been rightly dismissed by the trial Court. However, in view of the fact that the defendants are not free from blame as discussed above and they have utilised the property to the best of their advantage right from day one without, at the same time, paying the balance sale price for several years we put it to the counsel for the appellants whether they are willing to pay to the plaintiff a substantial amount over and above the sale price already deposited in the Court, in order to do justice to the parties. In fact, in the course of arguments by the learned counsel for the appellants, there was an indication that the appellants were prepared to offer a reasonable amount, without prejudice to their contentions. The learned counsel for the appellants has filed a letter dated 18.4.2002 stating that "the appellants can pay and agree to pay a further sum of Rs. 35 lacs (Rupees thirty five lacs) in 3 instalments of Rs. 15 lacs and Rs. 10 lacs and Rs. 10 lacs", in three weeks, by the end of August and by the end of November, 2002 respectively. When we suggested to the learned counsel that it would be fair if some more amount is offered, the learned counsel for the appellants agreed on behalf of his clients for payment of Rs. 40 lacs in lump sum within a period of six months commencing from today. Having regard to the offer made in the letter coupled with the oral representation made today and to mere out justice to the parties, we direct that the undertaking to pay the sum of Rs. 40 lacs within six months should form part of the decree in the suit. This shall be in addition to the sale price already deposited in the Court. The same shall be deposited in the Court within a period of six months and the appellants are entitled to withdraw the same in addition to the amount already deposited. | 1 | 6,006 | 591 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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is that the bank draft for the amount of Rs. 5,000/- received from the defendants was not returned and it is not the case of the plaintiff that the draft was not credited to their account. When Shri B.D. Meattle (P.W.1) was confronted with this fact, he came forward with a peculiar explanation that the relationship was not so much strained and therefore the bank draft was not returned. If at all, this is a factor which goes in favour of the defendants rather than the plaintiff. All this would show that the plaintiff consciously agreed to honour the understanding arrived at between the Director of the Company Shri R.K. Meattle and the defendants which was reduced into writing in the form of a letter. If that agreement is true and binding, as has been held by the Trial Court, the plaintiff could not have rescinded the contract in September 1973, despite the fact that the suit filed by the Seth Shanti Lal Jain was pending and the formalities requisite for completion of registration were not completed. It may be an imprudent act on the part of Shri R.K. Meattle, going by the tenor of arrangement, but, in the absence of any allegations of collusion and mis-representation, the Court cannot disregard the agreement embodied in the letter dated 12.8.1971 which was believed by the trial Court. We are, therefore, of the view that reversal by the High Court of the trial Courts finding on this aspect is unwarranted and as already noted, is vitiated by non-consideration of the relevant material on record. This Court has, therefore, no option but to disturb the factual finding reached by the High Court. 12. One more fact which disentitles the plaintiff to the equitable relief under Section 27/31 of the Specific Relief Act is the unexplained delay in filing the suit after the exchange of notices in September 1973. Almost three years later, the suit was filed. This inaction has its own revelation. Either the plaintiff did not stand by his declaration to rescind the contract, as held by the trial Court, or the plaintiff was sitting on the fence and waiting to see whether the turn of events would be to his advantage or disadvantage. 13. If the above facts and circumstances are cumulatively considered, the plaintiff has no legitimate ground to seek the equitable remedy. While these are the factors that can be put against the plaintiff, the defendants-appellants are not free from blame. We cannot lose sight of the fact that their conduct is also open to question. The defendants, in the initial stages, insisted on income-tax clearance certificate. When the defendants were informed of the readiness of the plaintiff to hand over the ITC subject to payment of balance money within 15 days, the defendants then raised the plea of pendency of the suit of Seth Shanti Lal which was by then dismissed for default. The factum of dismissal of suit was intimated to the defendants through the notice dated 3.7.1973, though the suit was subsequently restored and was finally dismissed in the year 1978. The fact remains that the defendants who, in the initial stages, were prepared to pay the balance sale price on receipt of ITC, for reasons best known to them, dodged to make the payment on the ground of pendency of suit. Though this conduct on the part of the defendants is not above board the conduct of the plaintiff, who has sought equitable remedy, should be kept uppermost in the mind of the Court. The plaintiff seeking equitable remedy cannot approach the Court with unclean hands or be guilty of laches. Irrespective of the conduct of the defendants we must hold that the plaintiff has, for various reasons discussed, above, disentitled himself to the relief of cancellation of instrument and for recovery of possession from the defendants that too after the property was substantially developed. 14. The result of the foregoing discussion is that the suit is liable to be dismissed and it has been rightly dismissed by the trial Court. However, in view of the fact that the defendants are not free from blame as discussed above and they have utilised the property to the best of their advantage right from day one without, at the same time, paying the balance sale price for several years we put it to the counsel for the appellants whether they are willing to pay to the plaintiff a substantial amount over and above the sale price already deposited in the Court, in order to do justice to the parties. In fact, in the course of arguments by the learned counsel for the appellants, there was an indication that the appellants were prepared to offer a reasonable amount, without prejudice to their contentions. The learned counsel for the appellants has filed a letter dated 18.4.2002 stating that "the appellants can pay and agree to pay a further sum of Rs. 35 lacs (Rupees thirty five lacs) in 3 instalments of Rs. 15 lacs and Rs. 10 lacs and Rs. 10 lacs", in three weeks, by the end of August and by the end of November, 2002 respectively. When we suggested to the learned counsel that it would be fair if some more amount is offered, the learned counsel for the appellants agreed on behalf of his clients for payment of Rs. 40 lacs in lump sum within a period of six months commencing from today. Having regard to the offer made in the letter coupled with the oral representation made today and to mere out justice to the parties, we direct that the undertaking to pay the sum of Rs. 40 lacs within six months should form part of the decree in the suit. This shall be in addition to the sale price already deposited in the Court. The same shall be deposited in the Court within a period of six months and the appellants are entitled to withdraw the same in addition to the amount already deposited.
### Response:
1
### Explanation:
8. We are of the view that the High Court failed to address itself to certain crucial factors which disentitles the plaintiff to equitable relief. The High Court reversed a well considered judgment of trial Court without adverting to the reasoning of trial Court except in a cursory manner. In the view we are taking, it is not necessary for us to dilate on various legal issues debated before us. We shall proceed on the basis that in law the plaintiff could annul the contract of the sale before the act of registration got completed and title passed to the appellants. We shall further assume that the plaintiff in fact rescinded the contract with effect from the date of expiry of the time stipulated in the 4th and final notice dated 3.7.1973. If such rescission or termination of contract is not justifiable on facts or having regard to the conduct of the plaintiff, the equitable relief under Section 27 or 31 of the Specific Relief Act has to be denied to the plaintiff, no further question arises for consideration. In such a case, the appellants’ plea has to be accepted and the suit is liable to be dismissed.The result of the foregoing discussion is that the suit is liable to be dismissed and it has been rightly dismissed by the trial Court. However, in view of the fact that the defendants are not free from blame as discussed above and they have utilised the property to the best of their advantage right from day one without, at the same time, paying the balance sale price for several years we put it to the counsel for the appellants whether they are willing to pay to the plaintiff a substantial amount over and above the sale price already deposited in the Court, in order to do justice to the parties. In fact, in the course of arguments by the learned counsel for the appellants, there was an indication that the appellants were prepared to offer a reasonable amount, without prejudice to their contentions. The learned counsel for the appellants has filed a letter dated 18.4.2002 stating that "the appellants can pay and agree to pay a further sum of Rs. 35 lacs (Rupees thirty five lacs) in 3 instalments of Rs. 15 lacs and Rs. 10 lacs and Rs. 10 lacs", in three weeks, by the end of August and by the end of November, 2002 respectively. When we suggested to the learned counsel that it would be fair if some more amount is offered, the learned counsel for the appellants agreed on behalf of his clients for payment of Rs. 40 lacs in lump sum within a period of six months commencing from today. Having regard to the offer made in the letter coupled with the oral representation made today and to mere out justice to the parties, we direct that the undertaking to pay the sum of Rs. 40 lacs within six months should form part of the decree in the suit. This shall be in addition to the sale price already deposited in the Court. The same shall be deposited in the Court within a period of six months and the appellants are entitled to withdraw the same in addition to the amount already deposited.
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THE MANAGING DIRECTOR, KERALA TOURISM DEVELOPMENT CORPORATION LTD Vs. DEEPTI SINGH | help by the swimmer in distress or other users of the pool, whether there was unusual splashing, whether the swimmer was struggling or motionless in the pool or whether there were other distractions which the lifeguard was required to attend to. There is no inflexible rule that the lifeguard is entitled to a certain amount of time to react before which an inference of negligence can be drawn. What is clear is that the longer it takes for a lifeguard to detect a swimmer in distress in the water, the more likely an inference of negligence would be drawn. The lapse of time before reacting is only one factor for consideration… (Emphasis supplied) 19. In the present case, it is an admitted position of fact that the lifeguard on duty was also functioning as the Bartender, and that a foreigner was the first one to notice the deceased drowning in the swimming pool. The breach of the duty of care lies in the fact that while the hotel had made the facility of a swimming pool available for its guests, it ought to have assigned a lifeguard who would perform his duties only in that capacity. The reasoning of the NCDRC to the effect that a lifeguard on duty should not be distracted by virtue of being assigned other duties, is eminently fair and proper. 20. Moreover, the hotel did not adduce any evidence of the lifeguard in the present case who would have been the best person to make a disclosure of facts which were to his knowledge. The Managing Director, who appeared as a witness, was not present at the time of the incident. His version was hearsay evidence. Hence, we find no difficulty in holding that there was a breach of the duty of care owed by the appellant. 21. (iii) Consequential Damages The third limb would require us to analyze whether the death of the deceased was caused by a breach of the duty and was not a remote and unforeseeable damage. Mr Gopal Sankarnarayanan, learned Counsel for the appellant contended that the death of the deceased was not due to the absence of the lifeguard and that a healthy 35-year- old man could not have drowned without any cause. Before we get to the particular facts of the case, it is important to elucidate on the concept of causation in the law of torts. In Reeves v Commissioner of Police 2000] 1 A.C. 360 , Lord Hobhouse opined thus: My Lords, causation as discussed in the authorities has been complicated both by conflicting statements about whether causation is a question of fact or of law or, even, common sense and by the use of metaphor and Latin terminology, e.g., causa sine qua non, causa causans, novus actus and volenti, which in themselves provide little enlightenment and are not consistently used. At one level causation is purely a question of fact…Any disputed question of causation (factual or legal) will involve a number of factual events or conditions which satisfy the but for test. A process of evaluation and selection has then to take place. It may, for example, be necessary to distinguish between what factually are necessary and sufficient causes… Thus certain causes will be discarded as insignificant and one cause may be selected as the cause. It is at this stage that legal concepts may enter in, either in a way that is analogous to the factual assessment…or, in a more specifically legal manner, in the attribution of responsibility (bearing in mind that responsibility may not be exclusive). In the law of tort it is the attribution of responsibility to humans that is the relevant legal consideration. 22. In the case before us, the post-mortem report indicates the following: No injury was present on the body. Brain was congested and oedematous. Air passages were congested and contained blood stained fluid. Lungs were crepitant and voluminous exuding copious amount of frothy blood stained fluid on sectioning… OPINION AS TO CAUSE OF DEATH: Postmortem appearances are consistent with death due to Drowning. (Emphasis supplied) The death of the deceased was due to drowning. Significantly, there was no evidence of the presence of alcohol in the body of the deceased. The death was due to drowning. Considering the delay in the response by the life guard who was preoccupied with bartending duties, the drowning of the deceased was a direct consequence of negligence. 23. On the above facts, we are of the view that the finding of a deficiency of service which was arrived at by the NCDRC was correct and was sustainable with reference to the material on the record. There is no element of perversity or any failure to take material circumstances into account in arriving at the decision. 24. That leaves this Court with the question of damages. Appeals have been filed against the decision both by the KTDC as well as by the original complainants. The deceased was 35 years old. He was a partner in a firm engaged in the business of trading in consumer goods and office automation along with two other persons. The income tax return for the assessment year 2005-06 indicated that he had a gross income of Rs.1,91,000/- The NCDRC has justifiably borne in mind the fact that the deceased had ample future prospects. Material was produced on the record to indicate that the deceased was carrying on business and also had agricultural income. The young children have been deprived of the support and affection of their father. Their mother has lost the companionship of a spouse. The nature of the loss is incapable of being fully compensated in monetary terms. In our view, taking into account the social status of the parties, the income of the deceased, the nature of the business, the prospects for future earnings, the loss of companionship for a spouse and of the guidance and support for the children, the assessment of compensation in the amount of Rs.62,50,000/- by the NCDRC cannot be faulted. | 0[ds]15. In the case before us, the deceased and the complainant were guests in the hotel run by the appellant. Since the facility of a swimming pool was available for use by the guests of the hotel, there was a close and proximate relationship between the management involving the maintenance of safe conditions in the pool and guests of the hotel using the pool. A hotel which provides a swimming pool for its guests owes a duty of care. The duty of care arises from the fact that unless the pool is properly maintained andsupervised by trained personnel, it is likely to become a potential source of hazard and danger. Every guest who enters the pool may not have the same level of proficiency as a swimmer. The management of the hotel can reasonably foresee the consequence which may arise if the pool and its facilities are not properly maintained. The observance of safety requires good physical facilities but in addition, human supervision over those who use the pool. Allowing or designating a life guard to perform the duties of a Bartender is a clear deviation from the duty of care. Mixing drinks does not augur well in preserving the safety of swimmers. The appellant could have reasonably foreseen that there could be potential harm caused by the absence of a dedicated lifeguard. The imposition of such a duty upon the appellant can be considered to be just, fair and reasonable. The failure to satisfy this duty of care would amount to a deficiency of service on the part of the hotel management17. The safety norms for water sports prescribed by the National Institute of Water Sports in the Ministry of Tourism of the Government of India cast an obligation upon the person or entity which provides a swimming pool in a hotel to appoint a lifeguard for the pool. The lifeguard should not be given any other duties which would distract her from the work of a lifeguard.19. In the present case, it is an admitted position of fact that the lifeguard on duty was also functioning as the Bartender, and that a foreigner was the first one to notice the deceased drowning in the swimming pool. The breach of the duty of care lies in the fact that while the hotel had made the facility of a swimming pool available for its guests, it ought to have assigned a lifeguard who would perform his duties only in that capacity. The reasoning of the NCDRC to the effect that a lifeguard on duty should not be distracted by virtue of being assigned other duties, is eminently fair and proper20. Moreover, the hotel did not adduce any evidence of the lifeguard in the present case who would have been the best person to make a disclosure of facts which were to his knowledge. The Managing Director, who appeared as a witness, was not present at the time of the incident. His version was hearsay evidence. Hence, we find no difficulty in holding that there was a breach of the duty of care owed by the appellantThe death of the deceased was due to drowning. Significantly, there was no evidence of the presence of alcohol in the body of the deceased. The death was due to drowning. Considering the delay in the response by the life guard who was preoccupied with bartending duties, the drowning of the deceased was a direct consequence of negligence23. On the above facts, we are of the view that the finding of a deficiency of service which was arrived at by the NCDRC was correct and was sustainable with reference to the material on the record. There is no element of perversity or any failure to take material circumstances into account in arriving at the decision24. That leaves this Court with the question of damages. Appeals have been filed against the decision both by the KTDC as well as by the original complainants. The deceased was 35 years old. He was a partner in a firm engaged in the business of trading in consumer goods and office automation along with two other persons. The income tax return for the assessment year 2005-06 indicated that he had a gross income of Rs.1,91,000/- The NCDRC has justifiably borne in mind the fact that the deceased had ample future prospects. Material was produced on the record to indicate that the deceased was carrying on business and also had agricultural income. The young children have been deprived of the support and affection of their father. Their mother has lost the companionship of a spouse. The nature of the loss is incapable of being fully compensated in monetary terms. In our view, taking into account the social status of the parties, the income of the deceased, the nature of the business, the prospects for future earnings, the loss of companionship for a spouse and of the guidance and support for the children, the assessment of compensation in the amount of Rs.62,50,000/- by the NCDRC cannot be faulted. | 0 | 4,163 | 900 | ### 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:
help by the swimmer in distress or other users of the pool, whether there was unusual splashing, whether the swimmer was struggling or motionless in the pool or whether there were other distractions which the lifeguard was required to attend to. There is no inflexible rule that the lifeguard is entitled to a certain amount of time to react before which an inference of negligence can be drawn. What is clear is that the longer it takes for a lifeguard to detect a swimmer in distress in the water, the more likely an inference of negligence would be drawn. The lapse of time before reacting is only one factor for consideration… (Emphasis supplied) 19. In the present case, it is an admitted position of fact that the lifeguard on duty was also functioning as the Bartender, and that a foreigner was the first one to notice the deceased drowning in the swimming pool. The breach of the duty of care lies in the fact that while the hotel had made the facility of a swimming pool available for its guests, it ought to have assigned a lifeguard who would perform his duties only in that capacity. The reasoning of the NCDRC to the effect that a lifeguard on duty should not be distracted by virtue of being assigned other duties, is eminently fair and proper. 20. Moreover, the hotel did not adduce any evidence of the lifeguard in the present case who would have been the best person to make a disclosure of facts which were to his knowledge. The Managing Director, who appeared as a witness, was not present at the time of the incident. His version was hearsay evidence. Hence, we find no difficulty in holding that there was a breach of the duty of care owed by the appellant. 21. (iii) Consequential Damages The third limb would require us to analyze whether the death of the deceased was caused by a breach of the duty and was not a remote and unforeseeable damage. Mr Gopal Sankarnarayanan, learned Counsel for the appellant contended that the death of the deceased was not due to the absence of the lifeguard and that a healthy 35-year- old man could not have drowned without any cause. Before we get to the particular facts of the case, it is important to elucidate on the concept of causation in the law of torts. In Reeves v Commissioner of Police 2000] 1 A.C. 360 , Lord Hobhouse opined thus: My Lords, causation as discussed in the authorities has been complicated both by conflicting statements about whether causation is a question of fact or of law or, even, common sense and by the use of metaphor and Latin terminology, e.g., causa sine qua non, causa causans, novus actus and volenti, which in themselves provide little enlightenment and are not consistently used. At one level causation is purely a question of fact…Any disputed question of causation (factual or legal) will involve a number of factual events or conditions which satisfy the but for test. A process of evaluation and selection has then to take place. It may, for example, be necessary to distinguish between what factually are necessary and sufficient causes… Thus certain causes will be discarded as insignificant and one cause may be selected as the cause. It is at this stage that legal concepts may enter in, either in a way that is analogous to the factual assessment…or, in a more specifically legal manner, in the attribution of responsibility (bearing in mind that responsibility may not be exclusive). In the law of tort it is the attribution of responsibility to humans that is the relevant legal consideration. 22. In the case before us, the post-mortem report indicates the following: No injury was present on the body. Brain was congested and oedematous. Air passages were congested and contained blood stained fluid. Lungs were crepitant and voluminous exuding copious amount of frothy blood stained fluid on sectioning… OPINION AS TO CAUSE OF DEATH: Postmortem appearances are consistent with death due to Drowning. (Emphasis supplied) The death of the deceased was due to drowning. Significantly, there was no evidence of the presence of alcohol in the body of the deceased. The death was due to drowning. Considering the delay in the response by the life guard who was preoccupied with bartending duties, the drowning of the deceased was a direct consequence of negligence. 23. On the above facts, we are of the view that the finding of a deficiency of service which was arrived at by the NCDRC was correct and was sustainable with reference to the material on the record. There is no element of perversity or any failure to take material circumstances into account in arriving at the decision. 24. That leaves this Court with the question of damages. Appeals have been filed against the decision both by the KTDC as well as by the original complainants. The deceased was 35 years old. He was a partner in a firm engaged in the business of trading in consumer goods and office automation along with two other persons. The income tax return for the assessment year 2005-06 indicated that he had a gross income of Rs.1,91,000/- The NCDRC has justifiably borne in mind the fact that the deceased had ample future prospects. Material was produced on the record to indicate that the deceased was carrying on business and also had agricultural income. The young children have been deprived of the support and affection of their father. Their mother has lost the companionship of a spouse. The nature of the loss is incapable of being fully compensated in monetary terms. In our view, taking into account the social status of the parties, the income of the deceased, the nature of the business, the prospects for future earnings, the loss of companionship for a spouse and of the guidance and support for the children, the assessment of compensation in the amount of Rs.62,50,000/- by the NCDRC cannot be faulted.
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0
### Explanation:
15. In the case before us, the deceased and the complainant were guests in the hotel run by the appellant. Since the facility of a swimming pool was available for use by the guests of the hotel, there was a close and proximate relationship between the management involving the maintenance of safe conditions in the pool and guests of the hotel using the pool. A hotel which provides a swimming pool for its guests owes a duty of care. The duty of care arises from the fact that unless the pool is properly maintained andsupervised by trained personnel, it is likely to become a potential source of hazard and danger. Every guest who enters the pool may not have the same level of proficiency as a swimmer. The management of the hotel can reasonably foresee the consequence which may arise if the pool and its facilities are not properly maintained. The observance of safety requires good physical facilities but in addition, human supervision over those who use the pool. Allowing or designating a life guard to perform the duties of a Bartender is a clear deviation from the duty of care. Mixing drinks does not augur well in preserving the safety of swimmers. The appellant could have reasonably foreseen that there could be potential harm caused by the absence of a dedicated lifeguard. The imposition of such a duty upon the appellant can be considered to be just, fair and reasonable. The failure to satisfy this duty of care would amount to a deficiency of service on the part of the hotel management17. The safety norms for water sports prescribed by the National Institute of Water Sports in the Ministry of Tourism of the Government of India cast an obligation upon the person or entity which provides a swimming pool in a hotel to appoint a lifeguard for the pool. The lifeguard should not be given any other duties which would distract her from the work of a lifeguard.19. In the present case, it is an admitted position of fact that the lifeguard on duty was also functioning as the Bartender, and that a foreigner was the first one to notice the deceased drowning in the swimming pool. The breach of the duty of care lies in the fact that while the hotel had made the facility of a swimming pool available for its guests, it ought to have assigned a lifeguard who would perform his duties only in that capacity. The reasoning of the NCDRC to the effect that a lifeguard on duty should not be distracted by virtue of being assigned other duties, is eminently fair and proper20. Moreover, the hotel did not adduce any evidence of the lifeguard in the present case who would have been the best person to make a disclosure of facts which were to his knowledge. The Managing Director, who appeared as a witness, was not present at the time of the incident. His version was hearsay evidence. Hence, we find no difficulty in holding that there was a breach of the duty of care owed by the appellantThe death of the deceased was due to drowning. Significantly, there was no evidence of the presence of alcohol in the body of the deceased. The death was due to drowning. Considering the delay in the response by the life guard who was preoccupied with bartending duties, the drowning of the deceased was a direct consequence of negligence23. On the above facts, we are of the view that the finding of a deficiency of service which was arrived at by the NCDRC was correct and was sustainable with reference to the material on the record. There is no element of perversity or any failure to take material circumstances into account in arriving at the decision24. That leaves this Court with the question of damages. Appeals have been filed against the decision both by the KTDC as well as by the original complainants. The deceased was 35 years old. He was a partner in a firm engaged in the business of trading in consumer goods and office automation along with two other persons. The income tax return for the assessment year 2005-06 indicated that he had a gross income of Rs.1,91,000/- The NCDRC has justifiably borne in mind the fact that the deceased had ample future prospects. Material was produced on the record to indicate that the deceased was carrying on business and also had agricultural income. The young children have been deprived of the support and affection of their father. Their mother has lost the companionship of a spouse. The nature of the loss is incapable of being fully compensated in monetary terms. In our view, taking into account the social status of the parties, the income of the deceased, the nature of the business, the prospects for future earnings, the loss of companionship for a spouse and of the guidance and support for the children, the assessment of compensation in the amount of Rs.62,50,000/- by the NCDRC cannot be faulted.
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M/s Mongia Realty and Buildwell Private Limited Vs. Manik Sethi | on 24 October 2013, the suit which was instituted on 31 March 2017 is barred by limitation; (iv) Article 1 of the Limitation Act has no application whatsoever since there was no open, running and mutual current account envisaging mutual payments and receipts between the parties; and (v) this is evident from the averments contained in paragraph 3 of the plaint where the appellant has set up the plea that it was only the appellant who was making payments to the respondent. 11. The appellant has specifically set up a plea in paragraph 5 of the plaint that the loans were to be repaid within one year from the date of the payment of the last installment. The case of the appellant has to be proved on the basis of evidence adduced in the suit. Such an issue could not have been decided purely on the basis of oral arguments urged on behalf of the contesting parties. The respondent has denied the existence of loan transactions and has set up the plea that the payments made by the appellant were on account of commission. There are two conflicting versions on the nature of the business transactions between the parties, the appellant alleging that it was a loan, while the respondent alleges that it was in the nature of a commission for real estate services. 12. The issue as to whether the claim of the appellant is barred by limitation cannot be isolated from the nature of the transactions between the parties. In any event, whether the plea of the appellant as set up in paragraph 5 of the plaint is proved would depend upon evidence adduced at the trial. The course of action which was followed by the learned trial Judge of directing the parties to address arguments on the issue of limitation was irregular. The issue of limitation in the present case would require evidence to be adduced. 13. Order XIV Rule 2 of the CPC stipulates that when issues of both law and facts arise in the same suit, the Court may dispose the suit by trying the issue of law first. For this purpose, the provision specifies two questions of law, which are (i) jurisdiction of the Court; and (ii) a bar to the suit created by any law for the time being in force. The provision is extracted below: 2. Court to pronounce judgment on all issues.—(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if the issue relates to— (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.] 14. Before this Court in Nusli Neville Wadia v. Ivory Properties (2020) 6 SCC 557 , the issue was whether the issue of limitation can be determined as a preliminary issue under Order XIV Rule 2. The three-judge bench of this court observed that if the issue of limitation is based on an admitted fact, it can be decided as a preliminary issue under Order XIV Rule(2)(b). However, if the facts surrounding the issue of limitation are disputed, it cannot be decided as a preliminary issue. This Court observed as follows: 51. […] As per Order 14 Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and if the question of law arises which is dependent upon the outcome of admitted facts, it is open to the court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order 14 Rule 2. In Order 14 Rule 2(1), the court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order 14 Rule 2(2) makes a departure and the court may decide the question of law as to jurisdiction of the court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act. 52. In a case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed. It cannot be decided as a preliminary issue if the facts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976. 15. Since the determination of the issue of limitation in this case is not a pure question of law, it cannot be decided as preliminary issue under Order XIV Rule 2 of the CPC. | 1[ds]11. The appellant has specifically set up a plea in paragraph 5 of the plaint that the loans were to be repaid within one year from the date of the payment of the last installment. The case of the appellant has to be proved on the basis of evidence adduced in the suit. Such an issue could not have been decided purely on the basis of oral arguments urged on behalf of the contesting parties. The respondent has denied the existence of loan transactions and has set up the plea that the payments made by the appellant were on account of commission. There are two conflicting versions on the nature of the business transactions between the parties, the appellant alleging that it was a loan, while the respondent alleges that it was in the nature of a commission for real estate services.12. The issue as to whether the claim of the appellant is barred by limitation cannot be isolated from the nature of the transactions between the parties. In any event, whether the plea of the appellant as set up in paragraph 5 of the plaint is proved would depend upon evidence adduced at the trial. The course of action which was followed by the learned trial Judge of directing the parties to address arguments on the issue of limitation was irregular. The issue of limitation in the present case would require evidence to be adduced.14. Before this Court in Nusli Neville Wadia v. Ivory Properties (2020) 6 SCC 557 , the issue was whether the issue of limitation can be determined as a preliminary issue under Order XIV Rule 2. The three-judge bench of this court observed that if the issue of limitation is based on an admitted fact, it can be decided as a preliminary issue under Order XIV Rule(2)(b). However, if the facts surrounding the issue of limitation are disputed, it cannot be decided as a preliminary issue. This Court observed as follows:51. […] As per Order 14 Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and if the question of law arises which is dependent upon the outcome of admitted facts, it is open to the court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order 14 Rule 2. In Order 14 Rule 2(1), the court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order 14 Rule 2(2) makes a departure and the court may decide the question of law as to jurisdiction of the court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act.52. In a case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed. It cannot be decided as a preliminary issue if the facts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976.15. Since the determination of the issue of limitation in this case is not a pure question of law, it cannot be decided as preliminary issue under Order XIV Rule 2 of the CPC. | 1 | 2,516 | 780 | ### 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:
on 24 October 2013, the suit which was instituted on 31 March 2017 is barred by limitation; (iv) Article 1 of the Limitation Act has no application whatsoever since there was no open, running and mutual current account envisaging mutual payments and receipts between the parties; and (v) this is evident from the averments contained in paragraph 3 of the plaint where the appellant has set up the plea that it was only the appellant who was making payments to the respondent. 11. The appellant has specifically set up a plea in paragraph 5 of the plaint that the loans were to be repaid within one year from the date of the payment of the last installment. The case of the appellant has to be proved on the basis of evidence adduced in the suit. Such an issue could not have been decided purely on the basis of oral arguments urged on behalf of the contesting parties. The respondent has denied the existence of loan transactions and has set up the plea that the payments made by the appellant were on account of commission. There are two conflicting versions on the nature of the business transactions between the parties, the appellant alleging that it was a loan, while the respondent alleges that it was in the nature of a commission for real estate services. 12. The issue as to whether the claim of the appellant is barred by limitation cannot be isolated from the nature of the transactions between the parties. In any event, whether the plea of the appellant as set up in paragraph 5 of the plaint is proved would depend upon evidence adduced at the trial. The course of action which was followed by the learned trial Judge of directing the parties to address arguments on the issue of limitation was irregular. The issue of limitation in the present case would require evidence to be adduced. 13. Order XIV Rule 2 of the CPC stipulates that when issues of both law and facts arise in the same suit, the Court may dispose the suit by trying the issue of law first. For this purpose, the provision specifies two questions of law, which are (i) jurisdiction of the Court; and (ii) a bar to the suit created by any law for the time being in force. The provision is extracted below: 2. Court to pronounce judgment on all issues.—(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if the issue relates to— (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.] 14. Before this Court in Nusli Neville Wadia v. Ivory Properties (2020) 6 SCC 557 , the issue was whether the issue of limitation can be determined as a preliminary issue under Order XIV Rule 2. The three-judge bench of this court observed that if the issue of limitation is based on an admitted fact, it can be decided as a preliminary issue under Order XIV Rule(2)(b). However, if the facts surrounding the issue of limitation are disputed, it cannot be decided as a preliminary issue. This Court observed as follows: 51. […] As per Order 14 Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and if the question of law arises which is dependent upon the outcome of admitted facts, it is open to the court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order 14 Rule 2. In Order 14 Rule 2(1), the court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order 14 Rule 2(2) makes a departure and the court may decide the question of law as to jurisdiction of the court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act. 52. In a case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed. It cannot be decided as a preliminary issue if the facts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976. 15. Since the determination of the issue of limitation in this case is not a pure question of law, it cannot be decided as preliminary issue under Order XIV Rule 2 of the CPC.
### Response:
1
### Explanation:
11. The appellant has specifically set up a plea in paragraph 5 of the plaint that the loans were to be repaid within one year from the date of the payment of the last installment. The case of the appellant has to be proved on the basis of evidence adduced in the suit. Such an issue could not have been decided purely on the basis of oral arguments urged on behalf of the contesting parties. The respondent has denied the existence of loan transactions and has set up the plea that the payments made by the appellant were on account of commission. There are two conflicting versions on the nature of the business transactions between the parties, the appellant alleging that it was a loan, while the respondent alleges that it was in the nature of a commission for real estate services.12. The issue as to whether the claim of the appellant is barred by limitation cannot be isolated from the nature of the transactions between the parties. In any event, whether the plea of the appellant as set up in paragraph 5 of the plaint is proved would depend upon evidence adduced at the trial. The course of action which was followed by the learned trial Judge of directing the parties to address arguments on the issue of limitation was irregular. The issue of limitation in the present case would require evidence to be adduced.14. Before this Court in Nusli Neville Wadia v. Ivory Properties (2020) 6 SCC 557 , the issue was whether the issue of limitation can be determined as a preliminary issue under Order XIV Rule 2. The three-judge bench of this court observed that if the issue of limitation is based on an admitted fact, it can be decided as a preliminary issue under Order XIV Rule(2)(b). However, if the facts surrounding the issue of limitation are disputed, it cannot be decided as a preliminary issue. This Court observed as follows:51. […] As per Order 14 Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and if the question of law arises which is dependent upon the outcome of admitted facts, it is open to the court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order 14 Rule 2. In Order 14 Rule 2(1), the court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order 14 Rule 2(2) makes a departure and the court may decide the question of law as to jurisdiction of the court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act.52. In a case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed. It cannot be decided as a preliminary issue if the facts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976.15. Since the determination of the issue of limitation in this case is not a pure question of law, it cannot be decided as preliminary issue under Order XIV Rule 2 of the CPC.
|
Spun Casting & Engg. Co. Pvt. Ltd Vs. Dwijendra Lal Sinha & Ors(Dead)Thr.Lrs | from the first party with the promise to pay a sum of Rs.5594-4 as five thousand five hundred ninety four and four annas per annum on account of rent." 17. Under Clause (ii) the settlers undertake to pay the rent to the landlord as also to the municipality. Clause (iii) provides for forfeiture of the settlement for non-payment of rent for four consecutive months. Clause (iv) provides that on the expiry of the agreement the "fittings and fixtures of the said karbar (business) which the second party is now receiving from the first party (the second party) shall return the same on the expiry of the period of agreement. If there be any loss or damage to the same the same shall be made good by the second party." Clause (v) provides that if necessary, second party can bring in new fixtures and appliances with prior notice to the settlers and on the expiry of the agreement the second party shall be entitled to remove the fixtures and appliances brought by them. Clause (vi) provides that settlers will be entitled to carry on the business in their own firms name but they shall have to bear all the expenses for electricity and telephone. Clause (vii) provides that after the expiry of first term if the second party desires to carry on the said karkhana (business) the first party shall enter into a separate agreement for a stipulated period. Clause (ix) expressly excludes the tank and its three banks from the settlement so made.18. The High Court after referring to the above quoted terms of the settlement came to the conclusion that the dominant intention of the parties who entered into the settlement was to effect a settlement in respect of the business of iron casting factory. The structures and sheds formed a part of the settlement only because the foundry was set up therein. The parties had never intended to settle or grant lease of the structure and the sheds as such. The High Court concluded that what was let out to the appellant was the business of running a iron casting foundry along with the building and the machinery and not a premises constituting a "premises tenancy" within the meaning of Section 2 (f) of the West Bengal Premises Tenancy Act, 1956. 19. We have no hesitation in accepting the findings recorded by the High Court. Premises have been defined under Section 2(f) of the Act to mean:- "Section 2 (f): "premises" means any building or part of a building or any hut or part of a hut let separately and includes-(i) the gardens, grounds, and out-houses, if any, appertaining thereto.(ii) any furniture supplied or any fittings or fixtures affixes for the use of the tenant in such building or part of a building or hut or part of a hut; but does not include a room in hotel or a lodging house." 20. Reading the terms of the settlement as aforesaid and construing the same we are of the view that the dominant intention of the settlers was to effect the settlement in respect of the karbar (business) of iron casting foundry set up by them along with machinery housed in a building. "Premises" in the Act are defined to mean a building or a part of a building which includes gardens, grounds and out-houses, if any, appertaining to the building. It also include the furniture supplied or any fittings or fixtures in a building or a part of the building but would not include a room in a hotel or a lodging house. It does not include the lease of a business along with machinery in a building. The intention of the parties was not to settle or grant lease of the structures and sheds as such. Structures and sheds did not constitute the dominant part of the settlement in favour of the appellant. It is evident from the terms of the settlement that the dominant intention of the parties was to create a lease for running the business of an iron casting foundry. It cannot be said that the settlement was in respect of the premises constituting "premises tenancy" within the meaning of the Act. Tenancy was not being created of the premised to run a business it was to the contrary.21. In Naraj Studios (P) Ltd. Navrang Studios and another, AIR 1981 SC 537 though this Court took the same view but keeping in view the peculiar provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, it was held the principle laid down in the earlier two judgments would not be applicable to the case. Referring to the amended provisions of the said Act it was held that the tenancy created was of the premises within the meaning of Section 5(8) and 5 (8A) to which Part II of the Act has been made applicable by Section 6(1) notwithstanding the fact that the building was not let our as such. We do not agree with the learned counsel for the appellant that this Court in Natraj Studios (P) Ltd. (supra) had revised its earlier view. The provisions of West Bengal Premises Tenancy Act, 1956 are altogether different from the provisions of the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947. The West Bengal Premises Tenancy Act, 1956 can have application only if what is settled by way of lease is a premises and in order to decide whether the settlement is such or not, we are governed by the well settled principle laid down by three-Judge Bench of this Court in Uttamchand vs. S.M. Lalwani, AIR 1965 SC 716 followed by a later Bench of four Honble Judges in Dwarka Prasad vs. Dwarka Das Saraf, AIR 1975 SC 1758 . In our view, what was settled in the present case was not the premises for carrying on a particular business but the businesses itself and therefore, it cannot come within the purview of West Bengal Premises Tenancy Act, 1956. | 0[ds]10. Finding recorded by the High Court with regard to the requirement of issuance of notice under Section 106 of the Transfer of Property Act and the maintainability of the suit by the respondents in their individual capacity after the dissolution of the partnership firm has not been challenged before us. These two findings are also affirmed.11. With regard to "B" Schedule property the High Court set aside the finding of the First Appellate Court on two counts. Firstly, that the appellant had committed a default in payment of the rent after 1363 B.S. and secondly, on the ground that what was let out to the appellant was not the premises within the meaning of Section 2(f) of the Act but the business housed in a building along with machinery which was not covered under the provision of the Act.12. Learned counsel for the appellant is right in submitting that the High Court has erred in holding that the appellant had committed a default in payment of the rent.in their plaint did not take the plea that the appellant had committed a default in the payment of the rent or seek his eviction on the ground of failure to pay the rent. No issue had been framed on this point. There is no material on the record to show that the appellant did not deposit the alleged arrears of rent as required by Section 17 (i) of the West Bengal Premises Tenancy Act, 1956, and as such a decree on the ground of default in payment of rent could not be passed. In the absence of any pleadings and evidence on record that the appellant had committed a default in the payment of rent, the High Court has erred in passing a decree for eviction on that ground.13. This Court in Uttam Chand vs. S.M. Lalwani, AIR 1965 SC 716 drawing a distinction between the lease of a building and the lease of a business held that what was protected under the Act was the lease of the building and not the lease of the business. The question before the Court was as to whether the lease created of Dal Mill building with fixed machinery in sound working condition was an "accommodation" within the meaning of Section 3A of the Madhya Pradesh Accommodation Control Act, 1955. For determining the nature of lease created the Court laid the rest of dominant intention of the parties while creating the lease which is to be gathered in each case by construing the terms of the lease deed. Construing the terms of the lease in the said case this Court came to the conclusion that the dominant intention of the parties was to create the lease of the business and not that of the building. It was held that since the lease created was of running the business, the same was not protected under the Act.In the present case according to thewhat was settled was the business of iron casting foundry along with building and the machinery therein and not the premises within the meaning of West Bengal Premises Tenancy Act, 1956. In order to determine the true character of the settlement, it would be necessary to refer to the deed itself and construe the terms thereof.16. The deed has not been described as the lease but as "an agreement for five years." In the first paragraph of the deed, the settlers recite how the first party having taken settlement of the land at premises no.77, Benaras Road along with a tank had set up an iron casting foundry valued approximately at Rs.It then goes on to recite that it is the said karkhana or in other words the business which is being settled with the second party i.e. the appellants on terms and conditions set out therein. Clause (i) of the terms provides that the second party is taking settlement of the business along with all its fixtures and appliances and the interest of the settles in the land on an annual rent of Rs.5,594.4 annas payable on a monthly instalment of Rs.466.3 annas.Under Clause (ii) the settlers undertake to pay the rent to the landlord as also to the municipality. Clause (iii) provides for forfeiture of the settlement forof rent for four consecutive months. Clause (iv) provides that on the expiry of the agreement the "fittings and fixtures of the said karbar (business) which the second party is now receiving from the first party (the second party) shall return the same on the expiry of the period of agreement. If there be any loss or damage to the same the same shall be made good by the second party." Clause (v) provides that if necessary, second party can bring in new fixtures and appliances with prior notice to the settlers and on the expiry of the agreement the second party shall be entitled to remove the fixtures and appliances brought by them. Clause (vi) provides that settlers will be entitled to carry on the business in their own firms name but they shall have to bear all the expenses for electricity and telephone. Clause (vii) provides that after the expiry of first term if the second party desires to carry on the said karkhana (business) the first party shall enter into a separate agreement for a stipulated period. Clause (ix) expressly excludes the tank and its three banks from the settlement so made.18. The High Court after referring to the above quoted terms of the settlement came to the conclusion that the dominant intention of the parties who entered into the settlement was to effect a settlement in respect of the business of iron casting factory. The structures and sheds formed a part of the settlement only because the foundry was set up therein. The parties had never intended to settle or grant lease of the structure and the sheds as such. The High Court concluded that what was let out to the appellant was the business of running a iron casting foundry along with the building and the machinery and not a premises constituting a "premises tenancy" within the meaning of Section 2 (f) of the West Bengal Premises Tenancy Act, 1956.Reading the terms of the settlement as aforesaid and construing the same we are of the view that the dominant intention of the settlers was to effect the settlement in respect of the karbar (business) of iron casting foundry set up by them along with machinery housed in a building. "Premises" in the Act are defined to mean a building or a part of a building which includes gardens, grounds andif any, appertaining to the building. It also include the furniture supplied or any fittings or fixtures in a building or a part of the building but would not include a room in a hotel or a lodging house. It does not include the lease of a business along with machinery in a building. The intention of the parties was not to settle or grant lease of the structures and sheds as such. Structures and sheds did not constitute the dominant part of the settlement in favour of the appellant. It is evident from the terms of the settlement that the dominant intention of the parties was to create a lease for running the business of an iron casting foundry. It cannot be said that the settlement was in respect of the premises constituting "premises tenancy" within the meaning of the Act. Tenancy was not being created of the premised to run a business it was to the contrary.21. In Naraj Studios (P) Ltd. Navrang Studios and another, AIR 1981 SC 537 though this Court took the same view but keeping in view the peculiar provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, it was held the principle laid down in the earlier two judgments would not be applicable to the case. Referring to the amended provisions of the said Act it was held that the tenancy created was of the premises within the meaning of Section 5(8) and 5 (8A) to which Part II of the Act has been made applicable by Section 6(1) notwithstanding the fact that the building was not let our as such. We do not agree with the learned counsel for the appellant that this Court in Natraj Studios (P) Ltd. (supra) had revised its earlier view. The provisions of West Bengal Premises Tenancy Act, 1956 are altogether different from the provisions of the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947. The West Bengal Premises Tenancy Act, 1956 can have application only if what is settled by way of lease is a premises and in order to decide whether the settlement is such or not, we are governed by the well settled principle laid down byBench of this Court in Uttamchand vs. S.M. Lalwani, AIR 1965 SC 716 followed by a later Bench of four Honble Judges in Dwarka Prasad vs. Dwarka Das Saraf, AIR 1975 SC 1758 . In our view, what was settled in the present case was not the premises for carrying on a particular business but the businesses itself and therefore, it cannot come within the purview of West Bengal Premises Tenancy Act, 1956. | 0 | 3,908 | 1,682 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
from the first party with the promise to pay a sum of Rs.5594-4 as five thousand five hundred ninety four and four annas per annum on account of rent." 17. Under Clause (ii) the settlers undertake to pay the rent to the landlord as also to the municipality. Clause (iii) provides for forfeiture of the settlement for non-payment of rent for four consecutive months. Clause (iv) provides that on the expiry of the agreement the "fittings and fixtures of the said karbar (business) which the second party is now receiving from the first party (the second party) shall return the same on the expiry of the period of agreement. If there be any loss or damage to the same the same shall be made good by the second party." Clause (v) provides that if necessary, second party can bring in new fixtures and appliances with prior notice to the settlers and on the expiry of the agreement the second party shall be entitled to remove the fixtures and appliances brought by them. Clause (vi) provides that settlers will be entitled to carry on the business in their own firms name but they shall have to bear all the expenses for electricity and telephone. Clause (vii) provides that after the expiry of first term if the second party desires to carry on the said karkhana (business) the first party shall enter into a separate agreement for a stipulated period. Clause (ix) expressly excludes the tank and its three banks from the settlement so made.18. The High Court after referring to the above quoted terms of the settlement came to the conclusion that the dominant intention of the parties who entered into the settlement was to effect a settlement in respect of the business of iron casting factory. The structures and sheds formed a part of the settlement only because the foundry was set up therein. The parties had never intended to settle or grant lease of the structure and the sheds as such. The High Court concluded that what was let out to the appellant was the business of running a iron casting foundry along with the building and the machinery and not a premises constituting a "premises tenancy" within the meaning of Section 2 (f) of the West Bengal Premises Tenancy Act, 1956. 19. We have no hesitation in accepting the findings recorded by the High Court. Premises have been defined under Section 2(f) of the Act to mean:- "Section 2 (f): "premises" means any building or part of a building or any hut or part of a hut let separately and includes-(i) the gardens, grounds, and out-houses, if any, appertaining thereto.(ii) any furniture supplied or any fittings or fixtures affixes for the use of the tenant in such building or part of a building or hut or part of a hut; but does not include a room in hotel or a lodging house." 20. Reading the terms of the settlement as aforesaid and construing the same we are of the view that the dominant intention of the settlers was to effect the settlement in respect of the karbar (business) of iron casting foundry set up by them along with machinery housed in a building. "Premises" in the Act are defined to mean a building or a part of a building which includes gardens, grounds and out-houses, if any, appertaining to the building. It also include the furniture supplied or any fittings or fixtures in a building or a part of the building but would not include a room in a hotel or a lodging house. It does not include the lease of a business along with machinery in a building. The intention of the parties was not to settle or grant lease of the structures and sheds as such. Structures and sheds did not constitute the dominant part of the settlement in favour of the appellant. It is evident from the terms of the settlement that the dominant intention of the parties was to create a lease for running the business of an iron casting foundry. It cannot be said that the settlement was in respect of the premises constituting "premises tenancy" within the meaning of the Act. Tenancy was not being created of the premised to run a business it was to the contrary.21. In Naraj Studios (P) Ltd. Navrang Studios and another, AIR 1981 SC 537 though this Court took the same view but keeping in view the peculiar provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, it was held the principle laid down in the earlier two judgments would not be applicable to the case. Referring to the amended provisions of the said Act it was held that the tenancy created was of the premises within the meaning of Section 5(8) and 5 (8A) to which Part II of the Act has been made applicable by Section 6(1) notwithstanding the fact that the building was not let our as such. We do not agree with the learned counsel for the appellant that this Court in Natraj Studios (P) Ltd. (supra) had revised its earlier view. The provisions of West Bengal Premises Tenancy Act, 1956 are altogether different from the provisions of the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947. The West Bengal Premises Tenancy Act, 1956 can have application only if what is settled by way of lease is a premises and in order to decide whether the settlement is such or not, we are governed by the well settled principle laid down by three-Judge Bench of this Court in Uttamchand vs. S.M. Lalwani, AIR 1965 SC 716 followed by a later Bench of four Honble Judges in Dwarka Prasad vs. Dwarka Das Saraf, AIR 1975 SC 1758 . In our view, what was settled in the present case was not the premises for carrying on a particular business but the businesses itself and therefore, it cannot come within the purview of West Bengal Premises Tenancy Act, 1956.
### Response:
0
### Explanation:
The deed has not been described as the lease but as "an agreement for five years." In the first paragraph of the deed, the settlers recite how the first party having taken settlement of the land at premises no.77, Benaras Road along with a tank had set up an iron casting foundry valued approximately at Rs.It then goes on to recite that it is the said karkhana or in other words the business which is being settled with the second party i.e. the appellants on terms and conditions set out therein. Clause (i) of the terms provides that the second party is taking settlement of the business along with all its fixtures and appliances and the interest of the settles in the land on an annual rent of Rs.5,594.4 annas payable on a monthly instalment of Rs.466.3 annas.Under Clause (ii) the settlers undertake to pay the rent to the landlord as also to the municipality. Clause (iii) provides for forfeiture of the settlement forof rent for four consecutive months. Clause (iv) provides that on the expiry of the agreement the "fittings and fixtures of the said karbar (business) which the second party is now receiving from the first party (the second party) shall return the same on the expiry of the period of agreement. If there be any loss or damage to the same the same shall be made good by the second party." Clause (v) provides that if necessary, second party can bring in new fixtures and appliances with prior notice to the settlers and on the expiry of the agreement the second party shall be entitled to remove the fixtures and appliances brought by them. Clause (vi) provides that settlers will be entitled to carry on the business in their own firms name but they shall have to bear all the expenses for electricity and telephone. Clause (vii) provides that after the expiry of first term if the second party desires to carry on the said karkhana (business) the first party shall enter into a separate agreement for a stipulated period. Clause (ix) expressly excludes the tank and its three banks from the settlement so made.18. The High Court after referring to the above quoted terms of the settlement came to the conclusion that the dominant intention of the parties who entered into the settlement was to effect a settlement in respect of the business of iron casting factory. The structures and sheds formed a part of the settlement only because the foundry was set up therein. The parties had never intended to settle or grant lease of the structure and the sheds as such. The High Court concluded that what was let out to the appellant was the business of running a iron casting foundry along with the building and the machinery and not a premises constituting a "premises tenancy" within the meaning of Section 2 (f) of the West Bengal Premises Tenancy Act, 1956.Reading the terms of the settlement as aforesaid and construing the same we are of the view that the dominant intention of the settlers was to effect the settlement in respect of the karbar (business) of iron casting foundry set up by them along with machinery housed in a building. "Premises" in the Act are defined to mean a building or a part of a building which includes gardens, grounds andif any, appertaining to the building. It also include the furniture supplied or any fittings or fixtures in a building or a part of the building but would not include a room in a hotel or a lodging house. It does not include the lease of a business along with machinery in a building. The intention of the parties was not to settle or grant lease of the structures and sheds as such. Structures and sheds did not constitute the dominant part of the settlement in favour of the appellant. It is evident from the terms of the settlement that the dominant intention of the parties was to create a lease for running the business of an iron casting foundry. It cannot be said that the settlement was in respect of the premises constituting "premises tenancy" within the meaning of the Act. Tenancy was not being created of the premised to run a business it was to the contrary.21. In Naraj Studios (P) Ltd. Navrang Studios and another, AIR 1981 SC 537 though this Court took the same view but keeping in view the peculiar provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, it was held the principle laid down in the earlier two judgments would not be applicable to the case. Referring to the amended provisions of the said Act it was held that the tenancy created was of the premises within the meaning of Section 5(8) and 5 (8A) to which Part II of the Act has been made applicable by Section 6(1) notwithstanding the fact that the building was not let our as such. We do not agree with the learned counsel for the appellant that this Court in Natraj Studios (P) Ltd. (supra) had revised its earlier view. The provisions of West Bengal Premises Tenancy Act, 1956 are altogether different from the provisions of the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947. The West Bengal Premises Tenancy Act, 1956 can have application only if what is settled by way of lease is a premises and in order to decide whether the settlement is such or not, we are governed by the well settled principle laid down byBench of this Court in Uttamchand vs. S.M. Lalwani, AIR 1965 SC 716 followed by a later Bench of four Honble Judges in Dwarka Prasad vs. Dwarka Das Saraf, AIR 1975 SC 1758 . In our view, what was settled in the present case was not the premises for carrying on a particular business but the businesses itself and therefore, it cannot come within the purview of West Bengal Premises Tenancy Act, 1956.
|
Alaknanda Hydro Power Co. Ltd Through Its Authorised Signatory Mr. S. Dhawan Vs. Anuj Joshi | the Reports and, prima facie, we are of the view that the AHEC Report has not made any indepth study on the cumulative impact of all project components like construction of dam, tunnels, blasting, power-house, Muck disposal, mining, deforestation etc. by the various projects in question and its consequences on Alaknanda as well as Bhagirathi river basins so also on Ganga which is a pristine river. WII in its Report in Chapter VIII states as follows: “Para 8.3.2 Present and future scenarioThe scenario building for assessing impacts on biodiversity values portrays very distinctively the present and futuristic trends of the impact significance of hydropower developments in all the sub- basins in the larger landscape represented by the Alaknanda and Bhagirathi basins.It becomes apparent that because of the fact that many of the projects are already in stage of operation and construction, the reversibility in significance of impacts on terrestrial biodiversity is not possible in sub-basins. Decline in biodiversity values of Bhagirathi II sub-basin have significantly been compounded by Tehri dam.The scenarios provide adequate understanding to make decisions with respect to applying exclusion approach across the two basins for securing key biodiversity sites (such as critically important habitats) and prevent adverse impacts on designated protected areas. Based on five different scenarios that have been presented the most acceptable option suggests that the decision with respect to 24 proposed Hydro Electric Projects may be reviewed.” 47. WII report also states that out of total 39 proposed projects, 24 projects have been found to be significantly impacting biodiversity in the two sub-basins and the combined footprint of all 24 projects have been considered for their potential to impact areas with biodiversity values, both aquatic and terrestrial, critically important habitat of rare, endangered and threatened species of flora and fauna and IWPA projected species. 48. B.K. Chaturvedi Committee, after referring to both the Reports, in Chapter III (Volume I, April 2013) stated as follows: “3.66 The River Ganga has over a period of years suffered environmental degradation due to various factors. It will be important to maintain pristine river in some river segments of Alaknanda and Bhagirathi. It accordingly recommends that six rivers, including Nayar, Bal Ganga, Rishi Ganga, Assi Ganga, Dhauli Ganga (upper reaches), Birahi Ganga and Bhyunder Ganga, should be kept in pristine form and developments along with measures for environment up gradation should be taken up. Specifically, it is proposed that (a) Nayar River and the Ganges stretch between Devprayag and Rishikesh and (b) Balganga – Tehri Reservoir complex may be declared as Fish Conservation Reserve as these two stretches are comparatively less disturbed and have critically important habitats for long-term survival of Himalayan fishes basin. Further, no new power projects should be taken up in the above six river basins. In the IMG’s assessment, this will mean about 400 MW of Power being not available to the State. 3.67 Pending a longer term perspective on the Ganga Basin Management Plan, following policy needs to be followed to implement the hydro power projects on the River Ganga on Bhagirathi and Alaknanda basins:(i) No new hydropower projects be taken up beyond 69 projects already identified (Annex-VIA-VID).(ii) New hydropower projects may be permitted to be constructed with limitations as in Paras 3.52-3.54 above and giving priority to those projects already under construction.iii) New hydropower projects which are still under investigation or under development are not being proposed for implementation. However, two such projects can be considered and a view taken after technical assessment by the CEA.Based on the above, projects at Annex-VID may need a review and decision till after long term Ganga basin study by IIT Consortium.3.70 The River Ganga has been a pristine River. Over a period of years, it has been used for irrigation, drinking water and other purposes. The efforts to keep it in the pristine form have been minimal. The IMG felt that it will be necessary to take measures for ensuring that several parts of it which have so far not been impacted continue to be in the pristine form. Secondly, it consider necessary to take measures on pollution, particularly in the upper reaches and the two basins of Bhagirathi and Alaknanda. The IMG, therefore, recommends that six rivers, including Nayar, Bal Ganga River, Rishi Ganga, Assi Ganga, Dhauli Ganga (upper reaches), Birahi Ganga and Bhyunder Ganga rivers should be kept in pristine form no further hydropower developments should take place in this region. Further, environment upgradation should be taken up in these sub- basins extensively.” 49. In the Executive Summary of Chaturvedi Report, on the question of ‘Environmental Impact of Projects’, reads as follows: 17. Development of new hydropower projects has impact on environment, ecology, biodiversity, both terrestrial & aquatic and economic and social life. 69 hydropower projects with a capacity of 9,020.30 MW are proposed in Bhagirathi and Alaknanda basins. This includes 17 projects which are operational with a capacity of 2,295.2 MW. In addition, 26 projects with a capacity of 3,261.3 MW (including 600 MW Lohari Nagpala hydropower project, work on which has been suspended by Government decision) which were under construction, 11 projects with a capacity of 2,350 MW CEA/TEC clearances and 16 projects with a capacity of 1,673.8 MW under development.4.18 The implementation of the above 69 hydropower projects has extensive implications for other needs of this society and the river itself. It is noticed that the implementation of all the above projects will lead to 81% of River Bhagirathi and 65% of River Alaknanda getting affected. Also there are a large number of projects which have very small distances between them leaving little space for river to regenerate and revive. 50. The above mentioned Reports would indicate the adverse impact of the various hydroelectric power projects on the ecology and environment of Alaknanda and Bhagirathi river basins. The cumulative impact of the various projects in place and which are under construction on the river basins have not been properly examined or assessed, which requires a detailed technical and scientific study. 51. | 1[ds]We find that a new dimension has been added to this litigation by initiating certain proceedings by group of litigants before the National Green Tribunal, New Delhi. MoEF also, on 30.06.2011, in exercise of powers conferred under Section 5 of the Environment (Protection) Act, 1986 passed a stop work order directing AHPCL to attend certain environmental issues which included (i) mounting Dhari Devi temple at a higher elevation as per the Plan prepared by INTACH (ii) maintain and manage muck at the various muck disposal sites by providing retention wall, slopes, compacting and terracing etc. (iii) develop greenbelt (iv) Catchment Area Treatment (v) undertaking Supana Query restoration (vi) maintain minimum environmental flow etc. | 1 | 15,569 | 140 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
the Reports and, prima facie, we are of the view that the AHEC Report has not made any indepth study on the cumulative impact of all project components like construction of dam, tunnels, blasting, power-house, Muck disposal, mining, deforestation etc. by the various projects in question and its consequences on Alaknanda as well as Bhagirathi river basins so also on Ganga which is a pristine river. WII in its Report in Chapter VIII states as follows: “Para 8.3.2 Present and future scenarioThe scenario building for assessing impacts on biodiversity values portrays very distinctively the present and futuristic trends of the impact significance of hydropower developments in all the sub- basins in the larger landscape represented by the Alaknanda and Bhagirathi basins.It becomes apparent that because of the fact that many of the projects are already in stage of operation and construction, the reversibility in significance of impacts on terrestrial biodiversity is not possible in sub-basins. Decline in biodiversity values of Bhagirathi II sub-basin have significantly been compounded by Tehri dam.The scenarios provide adequate understanding to make decisions with respect to applying exclusion approach across the two basins for securing key biodiversity sites (such as critically important habitats) and prevent adverse impacts on designated protected areas. Based on five different scenarios that have been presented the most acceptable option suggests that the decision with respect to 24 proposed Hydro Electric Projects may be reviewed.” 47. WII report also states that out of total 39 proposed projects, 24 projects have been found to be significantly impacting biodiversity in the two sub-basins and the combined footprint of all 24 projects have been considered for their potential to impact areas with biodiversity values, both aquatic and terrestrial, critically important habitat of rare, endangered and threatened species of flora and fauna and IWPA projected species. 48. B.K. Chaturvedi Committee, after referring to both the Reports, in Chapter III (Volume I, April 2013) stated as follows: “3.66 The River Ganga has over a period of years suffered environmental degradation due to various factors. It will be important to maintain pristine river in some river segments of Alaknanda and Bhagirathi. It accordingly recommends that six rivers, including Nayar, Bal Ganga, Rishi Ganga, Assi Ganga, Dhauli Ganga (upper reaches), Birahi Ganga and Bhyunder Ganga, should be kept in pristine form and developments along with measures for environment up gradation should be taken up. Specifically, it is proposed that (a) Nayar River and the Ganges stretch between Devprayag and Rishikesh and (b) Balganga – Tehri Reservoir complex may be declared as Fish Conservation Reserve as these two stretches are comparatively less disturbed and have critically important habitats for long-term survival of Himalayan fishes basin. Further, no new power projects should be taken up in the above six river basins. In the IMG’s assessment, this will mean about 400 MW of Power being not available to the State. 3.67 Pending a longer term perspective on the Ganga Basin Management Plan, following policy needs to be followed to implement the hydro power projects on the River Ganga on Bhagirathi and Alaknanda basins:(i) No new hydropower projects be taken up beyond 69 projects already identified (Annex-VIA-VID).(ii) New hydropower projects may be permitted to be constructed with limitations as in Paras 3.52-3.54 above and giving priority to those projects already under construction.iii) New hydropower projects which are still under investigation or under development are not being proposed for implementation. However, two such projects can be considered and a view taken after technical assessment by the CEA.Based on the above, projects at Annex-VID may need a review and decision till after long term Ganga basin study by IIT Consortium.3.70 The River Ganga has been a pristine River. Over a period of years, it has been used for irrigation, drinking water and other purposes. The efforts to keep it in the pristine form have been minimal. The IMG felt that it will be necessary to take measures for ensuring that several parts of it which have so far not been impacted continue to be in the pristine form. Secondly, it consider necessary to take measures on pollution, particularly in the upper reaches and the two basins of Bhagirathi and Alaknanda. The IMG, therefore, recommends that six rivers, including Nayar, Bal Ganga River, Rishi Ganga, Assi Ganga, Dhauli Ganga (upper reaches), Birahi Ganga and Bhyunder Ganga rivers should be kept in pristine form no further hydropower developments should take place in this region. Further, environment upgradation should be taken up in these sub- basins extensively.” 49. In the Executive Summary of Chaturvedi Report, on the question of ‘Environmental Impact of Projects’, reads as follows: 17. Development of new hydropower projects has impact on environment, ecology, biodiversity, both terrestrial & aquatic and economic and social life. 69 hydropower projects with a capacity of 9,020.30 MW are proposed in Bhagirathi and Alaknanda basins. This includes 17 projects which are operational with a capacity of 2,295.2 MW. In addition, 26 projects with a capacity of 3,261.3 MW (including 600 MW Lohari Nagpala hydropower project, work on which has been suspended by Government decision) which were under construction, 11 projects with a capacity of 2,350 MW CEA/TEC clearances and 16 projects with a capacity of 1,673.8 MW under development.4.18 The implementation of the above 69 hydropower projects has extensive implications for other needs of this society and the river itself. It is noticed that the implementation of all the above projects will lead to 81% of River Bhagirathi and 65% of River Alaknanda getting affected. Also there are a large number of projects which have very small distances between them leaving little space for river to regenerate and revive. 50. The above mentioned Reports would indicate the adverse impact of the various hydroelectric power projects on the ecology and environment of Alaknanda and Bhagirathi river basins. The cumulative impact of the various projects in place and which are under construction on the river basins have not been properly examined or assessed, which requires a detailed technical and scientific study. 51.
### Response:
1
### Explanation:
We find that a new dimension has been added to this litigation by initiating certain proceedings by group of litigants before the National Green Tribunal, New Delhi. MoEF also, on 30.06.2011, in exercise of powers conferred under Section 5 of the Environment (Protection) Act, 1986 passed a stop work order directing AHPCL to attend certain environmental issues which included (i) mounting Dhari Devi temple at a higher elevation as per the Plan prepared by INTACH (ii) maintain and manage muck at the various muck disposal sites by providing retention wall, slopes, compacting and terracing etc. (iii) develop greenbelt (iv) Catchment Area Treatment (v) undertaking Supana Query restoration (vi) maintain minimum environmental flow etc.
|
Pandit Ram Narain Vs. The State Of Uttar Pradesh Andothers | that if an inhabitant of the Town Area alone was entitled to file an objection to preliminary proposals for taxation, then in all the clauses of sub.s.(1) of S. 14 residence within the Town Area must be read as a necessary condition for the imposition of the taxes under S.14. This condition appears to us to be unsound. Firstly, the objection as to preliminary proposals for taxation is not the same thing as objection to an assessment, and it may well be that the legislature in their wisdom thought fit to confine the filing of objections to preliminary proposals for taxation to the inhabitants of the Town Area. Secondly, there are several other sections of the Act such as S. 20 and S. 21, which show that the imposition of a tax on persons not resident within the Town Area but having some other nexus within the Area, was permissible. Thirdly, the question of the validity of sub.s.(4) of S. 15-A does not arise in this case. The appellant was assessed to a tax and had a right to file an appeal which right he exercised. No grievance was made of the failure to exercise the right under sub.s.(4) of S.15-A. It is, therefore, unnecessary for us to make any pronouncement on the validity or otherwise of sub.s.(4) of 15-A.All that is necessary for us to state is that by reason of sub.s (4) of S.15-A, it cannot be held that residence within the Town Area is a necessary condition for the imposition of a tax in all the clauses of sub.s.(1) of S.14 of the Act.9. Learned counsel for the appellant referred us to two decisions of the Allahabad High Court:District Board Farrukhabad v. Prag DuttA I R 1948 All 382 (FB) (A) andDistrict Board Dehra Dun v. Damodar Dutt,I L R (1944) ALL 611: (AIR 1944 All 223 (2)) (B). The second decision, which was earlier in point of time, arose out of a suit for recovery of circumstances and property tax under the U. P. District Boards Act (Local Act 10 of 1922). The question there was whether District Board of Dehradun could impose a tax on the defendants who were not residents within the area of the District Board. It is worthy of note that under S.114, U.P. District Boards Act, the power of a Board to impose a tax on circumstances and property is subject to the condition that the tax may be imposed on any person residing or carrying on business in the rural area within the District Board. The only question in that Allahabad case was whether the defendants resided within the rural area of the District Board so as to make them liable for the tax. The finding was that they did not reside within the rural area and therefore the imposition of the tax was illegal, and S.131, U.P. District Boards Act did not bar the suit. This decision does not help the appellant. If it shows anything, it shows that it was open to the District Board to impose a circumstances and property tax on any person residing or carrying on business in the rural area.10. In the 1948 Allahabad decision, the main question was whether the provisions of S. 2, Professions Tax Limitation Act (20 of 1941) affected the powers conferred upon the District Board by S.108, U.P. District Boards Act, to levy a tax on Circumstances and property. A subsidiary question was also raised, whether S.131, U.P. District Boards Act, barred the suit. With regards to the main question, it was pointed out that the name given to a tax did not matter; what had to he considered was the pith and substance of it. It was held that in pith and substance the tax was one which attracted the provisions of S.2, Professions Tax Limitation Act (20 of 1941). A tax on circumstances and property is a composite tax and the word circumstances means a mans financial position, his status as a whole, depending among other things, on his income from trade or business.Far from militating against the principle that in considering the circumstances of a person his income from trade or business within the Town Area may be taken into consideration, the decision approves of the principle. In the course of his judgement, Bind Basni Prasad J. referred to S.128, U.P. Municipalities, Act, 1916, where taxes on circumstances and property appear as a head distinct from the taxes on trades, callings and vocations and employments and the argument was that the taxes being under different heads should be treated as being entirely different, one from the other. It was rightly pointed out that it is no sound principle of construction to interpret expressions used in one Act with reference to their use in another Act. The meanings of words and expressions used in an Act must take their colour from the context in which they appear. It is true that in the Act under our consideration the taxes which the Town Area Committee may impose appear under different heads in sub.s. (1) of S.14.We have already stated that though the clauses are different, the words used in the section show that there may be overlapping between the different clauses, and to prevent the same person being subjected to multiple taxation, a proviso was incorporated in cl.(f). In view of the words and expressions used in S.14 of the Act, we cannot accept the argument that cl.(f) should be read as entirely independent of and unconnected with the other clauses and a different condition, namely residence within the Town Area, must be read as a necessary part of cl.(f). To do so will be to read in cl.(f) words which do not occur there. The limitations for the imposition of a tax under cl.(f) are given in R. 3 and residence is only one of the alternative conditions for the imposition of the tax - not asine qua nonas is contended by learned counsel for the appellant. | 0[ds]We think that learned counsel has rightly submitted that, so far as the present appellant is concerned,the list prepared under S.15 must have shown him as assessed to a certain amount of tax under cl.(f) of sub.s.(1) of S.14 and the assessment must have been confirmed on that basis by the District Magistrate. Therefore, the legality of the tax imposed on the appellant must be considered with reference to the clause under which the assessment was actually made, and a different clause under which the assessment might have fallen cannot be called in aid of thecondition appears to us to be unsound. Firstly, the objection as to preliminary proposals for taxation is not the same thing as objection to an assessment, and it may well be that the legislature in their wisdom thought fit to confine the filing of objections to preliminary proposals for taxation to the inhabitants of the Town Area. Secondly, there are several other sections of the Act such as S. 20 and S. 21, which show that the imposition of a tax on persons not resident within the Town Area but having some other nexus within the Area, was permissible. Thirdly, the question of the validity of sub.s.(4) of S. 15-A does not arise in this case. The appellant was assessed to a tax and had a right to file an appeal which right hegrievance was made of the failure to exercise the right under sub.s.(4) of S.15-A. It is, therefore, unnecessary for us to make any pronouncement on the validity or otherwise of sub.s.(4) of 15-A.All that is necessary for us to state is that by reason of sub.s (4) of S.15-A, it cannot be held that residence within the Town Area is a necessary condition for the imposition of a tax in all the clauses of sub.s.(1) of S.14 of thewas rightly pointed out that it is no sound principle of construction to interpret expressions used in one Act with reference to their use in another Act. The meanings of words and expressions used in an Act must take their colour from the context in which they appear. It is true that in the Act under our consideration the taxes which the Town Area Committee may impose appear under different heads in sub.s. (1) of S.14.We have already stated that though the clauses are different, the words used in the section show that there may be overlapping between the different clauses, and to prevent the same person being subjected to multiple taxation, a proviso was incorporated inview of the words and expressions used in S.14 of the Act, we cannot accept the argument that cl.(f) should be read as entirely independent of and unconnected with the other clauses and a different condition, namely residence within the Town Area, must be read as a necessary part of cl.(f). To do so will be to read in cl.(f) words which do not occur there. The limitations for the imposition of a tax under cl.(f) are given in R. 3 and residence is only one of the alternative conditions for the imposition of the tax - not asine qua nonas is contended by learned counsel for the appellant. | 0 | 3,696 | 613 | ### 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:
that if an inhabitant of the Town Area alone was entitled to file an objection to preliminary proposals for taxation, then in all the clauses of sub.s.(1) of S. 14 residence within the Town Area must be read as a necessary condition for the imposition of the taxes under S.14. This condition appears to us to be unsound. Firstly, the objection as to preliminary proposals for taxation is not the same thing as objection to an assessment, and it may well be that the legislature in their wisdom thought fit to confine the filing of objections to preliminary proposals for taxation to the inhabitants of the Town Area. Secondly, there are several other sections of the Act such as S. 20 and S. 21, which show that the imposition of a tax on persons not resident within the Town Area but having some other nexus within the Area, was permissible. Thirdly, the question of the validity of sub.s.(4) of S. 15-A does not arise in this case. The appellant was assessed to a tax and had a right to file an appeal which right he exercised. No grievance was made of the failure to exercise the right under sub.s.(4) of S.15-A. It is, therefore, unnecessary for us to make any pronouncement on the validity or otherwise of sub.s.(4) of 15-A.All that is necessary for us to state is that by reason of sub.s (4) of S.15-A, it cannot be held that residence within the Town Area is a necessary condition for the imposition of a tax in all the clauses of sub.s.(1) of S.14 of the Act.9. Learned counsel for the appellant referred us to two decisions of the Allahabad High Court:District Board Farrukhabad v. Prag DuttA I R 1948 All 382 (FB) (A) andDistrict Board Dehra Dun v. Damodar Dutt,I L R (1944) ALL 611: (AIR 1944 All 223 (2)) (B). The second decision, which was earlier in point of time, arose out of a suit for recovery of circumstances and property tax under the U. P. District Boards Act (Local Act 10 of 1922). The question there was whether District Board of Dehradun could impose a tax on the defendants who were not residents within the area of the District Board. It is worthy of note that under S.114, U.P. District Boards Act, the power of a Board to impose a tax on circumstances and property is subject to the condition that the tax may be imposed on any person residing or carrying on business in the rural area within the District Board. The only question in that Allahabad case was whether the defendants resided within the rural area of the District Board so as to make them liable for the tax. The finding was that they did not reside within the rural area and therefore the imposition of the tax was illegal, and S.131, U.P. District Boards Act did not bar the suit. This decision does not help the appellant. If it shows anything, it shows that it was open to the District Board to impose a circumstances and property tax on any person residing or carrying on business in the rural area.10. In the 1948 Allahabad decision, the main question was whether the provisions of S. 2, Professions Tax Limitation Act (20 of 1941) affected the powers conferred upon the District Board by S.108, U.P. District Boards Act, to levy a tax on Circumstances and property. A subsidiary question was also raised, whether S.131, U.P. District Boards Act, barred the suit. With regards to the main question, it was pointed out that the name given to a tax did not matter; what had to he considered was the pith and substance of it. It was held that in pith and substance the tax was one which attracted the provisions of S.2, Professions Tax Limitation Act (20 of 1941). A tax on circumstances and property is a composite tax and the word circumstances means a mans financial position, his status as a whole, depending among other things, on his income from trade or business.Far from militating against the principle that in considering the circumstances of a person his income from trade or business within the Town Area may be taken into consideration, the decision approves of the principle. In the course of his judgement, Bind Basni Prasad J. referred to S.128, U.P. Municipalities, Act, 1916, where taxes on circumstances and property appear as a head distinct from the taxes on trades, callings and vocations and employments and the argument was that the taxes being under different heads should be treated as being entirely different, one from the other. It was rightly pointed out that it is no sound principle of construction to interpret expressions used in one Act with reference to their use in another Act. The meanings of words and expressions used in an Act must take their colour from the context in which they appear. It is true that in the Act under our consideration the taxes which the Town Area Committee may impose appear under different heads in sub.s. (1) of S.14.We have already stated that though the clauses are different, the words used in the section show that there may be overlapping between the different clauses, and to prevent the same person being subjected to multiple taxation, a proviso was incorporated in cl.(f). In view of the words and expressions used in S.14 of the Act, we cannot accept the argument that cl.(f) should be read as entirely independent of and unconnected with the other clauses and a different condition, namely residence within the Town Area, must be read as a necessary part of cl.(f). To do so will be to read in cl.(f) words which do not occur there. The limitations for the imposition of a tax under cl.(f) are given in R. 3 and residence is only one of the alternative conditions for the imposition of the tax - not asine qua nonas is contended by learned counsel for the appellant.
### Response:
0
### Explanation:
We think that learned counsel has rightly submitted that, so far as the present appellant is concerned,the list prepared under S.15 must have shown him as assessed to a certain amount of tax under cl.(f) of sub.s.(1) of S.14 and the assessment must have been confirmed on that basis by the District Magistrate. Therefore, the legality of the tax imposed on the appellant must be considered with reference to the clause under which the assessment was actually made, and a different clause under which the assessment might have fallen cannot be called in aid of thecondition appears to us to be unsound. Firstly, the objection as to preliminary proposals for taxation is not the same thing as objection to an assessment, and it may well be that the legislature in their wisdom thought fit to confine the filing of objections to preliminary proposals for taxation to the inhabitants of the Town Area. Secondly, there are several other sections of the Act such as S. 20 and S. 21, which show that the imposition of a tax on persons not resident within the Town Area but having some other nexus within the Area, was permissible. Thirdly, the question of the validity of sub.s.(4) of S. 15-A does not arise in this case. The appellant was assessed to a tax and had a right to file an appeal which right hegrievance was made of the failure to exercise the right under sub.s.(4) of S.15-A. It is, therefore, unnecessary for us to make any pronouncement on the validity or otherwise of sub.s.(4) of 15-A.All that is necessary for us to state is that by reason of sub.s (4) of S.15-A, it cannot be held that residence within the Town Area is a necessary condition for the imposition of a tax in all the clauses of sub.s.(1) of S.14 of thewas rightly pointed out that it is no sound principle of construction to interpret expressions used in one Act with reference to their use in another Act. The meanings of words and expressions used in an Act must take their colour from the context in which they appear. It is true that in the Act under our consideration the taxes which the Town Area Committee may impose appear under different heads in sub.s. (1) of S.14.We have already stated that though the clauses are different, the words used in the section show that there may be overlapping between the different clauses, and to prevent the same person being subjected to multiple taxation, a proviso was incorporated inview of the words and expressions used in S.14 of the Act, we cannot accept the argument that cl.(f) should be read as entirely independent of and unconnected with the other clauses and a different condition, namely residence within the Town Area, must be read as a necessary part of cl.(f). To do so will be to read in cl.(f) words which do not occur there. The limitations for the imposition of a tax under cl.(f) are given in R. 3 and residence is only one of the alternative conditions for the imposition of the tax - not asine qua nonas is contended by learned counsel for the appellant.
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Nanda Dulal Pradhan & Anr Vs. Dibakar Pradhan & Anr | no purpose as the defendants cannot lead evidence in the absence of written statement filed by them and consequently setting aside the order passed by the First Appellate Court who allowed the appellants herein – original defendant nos. 2 and 3 to adduce the evidence apart from setting aside ex-parte judgment and decree, the original defendant nos. 2 & 3 have preferred the present appeal. 2. That the respondent no.1 herein – original plaintiff instituted the suit in the Court of learned Civil Judge (Junior Division), Jaleswar being TS No.317 of 2003, for declaration and title. The appellants – original defendant nos. 2 & 3 moved an impleadment application in the suit which was allowed. That thereafter the application under Order I Rule 10 of the CPC was allowed on 20.02.2004. The learned Trial Court fixed the next date as 27.02.2004 for filing the written statement. The appellants herein – original defendant nos. 2 & 3 (hereinafter referred to as original defendant nos. 2 & 3) sought time to file the written statement on various dates. However, they failed to file the written statement even after availing several opportunities. The original defendant nos. 2 & 3 also remained absent on number of dates. Therefore, neither did they file the written statement in the suit nor did they appear before the learned Trial Court. Thereafter the learned Trial Court passed an ex-parte judgment and decree dated 31.08.2004. In the above circumstances, defendant nos. 2 & 3 filed the application under Order IX Rule 13 of the CPC to set aside the ex-parte judgment and decree. The learned Trial Court dismissed the said application and refused to set aside the ex-parte judgment and decree. Hence defendant nos. 2 & 3 preferred the appeal before the First Appellate Court. The First Appellate Court allowed the said appeal by setting aside the order passed by the learned Trial Court dismissing the application to set aside the ex-parte judgment and decree. The First Appellate Court also passed an order to restore the suit to file and thereafter to dispose of the suit after affording sufficient opportunity to the parties to adduce their respective evidence and rebuttal evidence. Feeling aggrieved and dissatisfied with the order passed by the First Appellate Court in allowing the appeal and setting aside the ex-parte judgment and decree and the order directing that the matter be disposed of afresh in accordance with law after affording adequate opportunity to the parties to adduce their respective evidence and rebuttal evidence, the original plaintiff filed the present petition under Articles 226 and 227 of the Constitution of India before the High Court. By the impugned judgment and order and without considering and/or observing anything on the findings recorded by the First Appellate Court on whether there was a sufficient cause made out to set aside the ex-parte judgment and decree, the High Court has set aside the order passed by the First Appellate Court setting aside the ex-parte judgment and decree solely on the ground that as no written statement was filed on behalf of the defendant nos. 2 & 3 the reopening of the suit would become futile. Thereby the High Court has set aside the order passed by the First Appellate Court setting aside the ex-parte judgment and decree. 2.1 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original defendant nos. 2 & 3 have preferred the present appeal. 3. Having heard learned counsel for the respective parties and considering the order passed by the First Appellate Court setting aside the ex-parte judgment and decree and observing that on restoration of the suit the same be disposed of after affording opportunities to the parties to adduce their respective evidence and rebuttal evidence, the same was absolutely in consonance with the law laid down by this Court in the case of Sangram Singh versus Election Tribunal, AIR 1955 SC 425 and Arjun Singh versus Mohindra Kumar, AIR 1964 SC 993 . 3.1 At this stage it is required to be noted that as such the First Appellate Court gave specific findings while setting aside the ex-parte judgment and decree that the defendant nos. 2 & 3 have made out a sufficient cause for setting aside the exparte judgment and decree. But while passing the impugned judgment and order the High Court has not at all dealt with and considered the findings recorded by the First Appellate Court, recorded while setting aside ex-parte judgment and decree. The High Court has set aside the order passed by the First Appellate Court solely on the ground that as the defendant nos. 2 & 3 did not file the written statement and contested the suit, the reopening of the suit would become futile. However, as observed and held by this Court in the case of Sangram Singh (supra) on setting aside the ex-parte decree and on restoration of the suit the parties to the suit shall be put to the same position as they were at the time when the ex-parte judgment and decree was passed and the defendants may not be permitted to file the written statement as no written statement was filed. However, at the same time they can be permitted to participate in the suit proceedings and cross-examine the witnesses. In that view of the matter the impugned judgment and order passed by the High Court is unsustainable. Still, on setting aside the ex-parte judgment and decree, though the defendants who had not filed the written statement, can be permitted to participate in the suit and cross-examine the witnesses. Therefore, the High Court is not right in observing that as no written statement was filed by the defendants, the reopening of the suit by setting aside ex-parte judgment and decree will become futile. As observed hereinabove the High Court has not at all observed anything on the correctness of the order passed by the First Appellate Court setting aside the ex-parte judgment and decree on merits. | 1[ds]3. Having heard learned counsel for the respective parties and considering the order passed by the First Appellate Court setting aside the ex-parte judgment and decree and observing that on restoration of the suit the same be disposed of after affording opportunities to the parties to adduce their respective evidence and rebuttal evidence, the same was absolutely in consonance with the law laid down by this Court in the case of Sangram Singh versus Election Tribunal, AIR 1955 SC 425 and Arjun Singh versus Mohindra Kumar, AIR 1964 SC 993 .3.1 At this stage it is required to be noted that as such the First Appellate Court gave specific findings while setting aside the ex-parte judgment and decree that the defendant nos. 2 & 3 have made out a sufficient cause for setting aside the exparte judgment and decree. But while passing the impugned judgment and order the High Court has not at all dealt with and considered the findings recorded by the First Appellate Court, recorded while setting aside ex-parte judgment and decree. The High Court has set aside the order passed by the First Appellate Court solely on the ground that as the defendant nos. 2 & 3 did not file the written statement and contested the suit, the reopening of the suit would become futile. However, as observed and held by this Court in the case of Sangram Singh (supra) on setting aside the ex-parte decree and on restoration of the suit the parties to the suit shall be put to the same position as they were at the time when the ex-parte judgment and decree was passed and the defendants may not be permitted to file the written statement as no written statement was filed. However, at the same time they can be permitted to participate in the suit proceedings and cross-examine the witnesses. In that view of the matter the impugned judgment and order passed by the High Court is unsustainable. Still, on setting aside the ex-parte judgment and decree, though the defendants who had not filed the written statement, can be permitted to participate in the suit and cross-examine the witnesses. Therefore, the High Court is not right in observing that as no written statement was filed by the defendants, the reopening of the suit by setting aside ex-parte judgment and decree will become futile. As observed hereinabove the High Court has not at all observed anything on the correctness of the order passed by the First Appellate Court setting aside the ex-parte judgment and decree on merits. | 1 | 1,125 | 454 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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no purpose as the defendants cannot lead evidence in the absence of written statement filed by them and consequently setting aside the order passed by the First Appellate Court who allowed the appellants herein – original defendant nos. 2 and 3 to adduce the evidence apart from setting aside ex-parte judgment and decree, the original defendant nos. 2 & 3 have preferred the present appeal. 2. That the respondent no.1 herein – original plaintiff instituted the suit in the Court of learned Civil Judge (Junior Division), Jaleswar being TS No.317 of 2003, for declaration and title. The appellants – original defendant nos. 2 & 3 moved an impleadment application in the suit which was allowed. That thereafter the application under Order I Rule 10 of the CPC was allowed on 20.02.2004. The learned Trial Court fixed the next date as 27.02.2004 for filing the written statement. The appellants herein – original defendant nos. 2 & 3 (hereinafter referred to as original defendant nos. 2 & 3) sought time to file the written statement on various dates. However, they failed to file the written statement even after availing several opportunities. The original defendant nos. 2 & 3 also remained absent on number of dates. Therefore, neither did they file the written statement in the suit nor did they appear before the learned Trial Court. Thereafter the learned Trial Court passed an ex-parte judgment and decree dated 31.08.2004. In the above circumstances, defendant nos. 2 & 3 filed the application under Order IX Rule 13 of the CPC to set aside the ex-parte judgment and decree. The learned Trial Court dismissed the said application and refused to set aside the ex-parte judgment and decree. Hence defendant nos. 2 & 3 preferred the appeal before the First Appellate Court. The First Appellate Court allowed the said appeal by setting aside the order passed by the learned Trial Court dismissing the application to set aside the ex-parte judgment and decree. The First Appellate Court also passed an order to restore the suit to file and thereafter to dispose of the suit after affording sufficient opportunity to the parties to adduce their respective evidence and rebuttal evidence. Feeling aggrieved and dissatisfied with the order passed by the First Appellate Court in allowing the appeal and setting aside the ex-parte judgment and decree and the order directing that the matter be disposed of afresh in accordance with law after affording adequate opportunity to the parties to adduce their respective evidence and rebuttal evidence, the original plaintiff filed the present petition under Articles 226 and 227 of the Constitution of India before the High Court. By the impugned judgment and order and without considering and/or observing anything on the findings recorded by the First Appellate Court on whether there was a sufficient cause made out to set aside the ex-parte judgment and decree, the High Court has set aside the order passed by the First Appellate Court setting aside the ex-parte judgment and decree solely on the ground that as no written statement was filed on behalf of the defendant nos. 2 & 3 the reopening of the suit would become futile. Thereby the High Court has set aside the order passed by the First Appellate Court setting aside the ex-parte judgment and decree. 2.1 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original defendant nos. 2 & 3 have preferred the present appeal. 3. Having heard learned counsel for the respective parties and considering the order passed by the First Appellate Court setting aside the ex-parte judgment and decree and observing that on restoration of the suit the same be disposed of after affording opportunities to the parties to adduce their respective evidence and rebuttal evidence, the same was absolutely in consonance with the law laid down by this Court in the case of Sangram Singh versus Election Tribunal, AIR 1955 SC 425 and Arjun Singh versus Mohindra Kumar, AIR 1964 SC 993 . 3.1 At this stage it is required to be noted that as such the First Appellate Court gave specific findings while setting aside the ex-parte judgment and decree that the defendant nos. 2 & 3 have made out a sufficient cause for setting aside the exparte judgment and decree. But while passing the impugned judgment and order the High Court has not at all dealt with and considered the findings recorded by the First Appellate Court, recorded while setting aside ex-parte judgment and decree. The High Court has set aside the order passed by the First Appellate Court solely on the ground that as the defendant nos. 2 & 3 did not file the written statement and contested the suit, the reopening of the suit would become futile. However, as observed and held by this Court in the case of Sangram Singh (supra) on setting aside the ex-parte decree and on restoration of the suit the parties to the suit shall be put to the same position as they were at the time when the ex-parte judgment and decree was passed and the defendants may not be permitted to file the written statement as no written statement was filed. However, at the same time they can be permitted to participate in the suit proceedings and cross-examine the witnesses. In that view of the matter the impugned judgment and order passed by the High Court is unsustainable. Still, on setting aside the ex-parte judgment and decree, though the defendants who had not filed the written statement, can be permitted to participate in the suit and cross-examine the witnesses. Therefore, the High Court is not right in observing that as no written statement was filed by the defendants, the reopening of the suit by setting aside ex-parte judgment and decree will become futile. As observed hereinabove the High Court has not at all observed anything on the correctness of the order passed by the First Appellate Court setting aside the ex-parte judgment and decree on merits.
### Response:
1
### Explanation:
3. Having heard learned counsel for the respective parties and considering the order passed by the First Appellate Court setting aside the ex-parte judgment and decree and observing that on restoration of the suit the same be disposed of after affording opportunities to the parties to adduce their respective evidence and rebuttal evidence, the same was absolutely in consonance with the law laid down by this Court in the case of Sangram Singh versus Election Tribunal, AIR 1955 SC 425 and Arjun Singh versus Mohindra Kumar, AIR 1964 SC 993 .3.1 At this stage it is required to be noted that as such the First Appellate Court gave specific findings while setting aside the ex-parte judgment and decree that the defendant nos. 2 & 3 have made out a sufficient cause for setting aside the exparte judgment and decree. But while passing the impugned judgment and order the High Court has not at all dealt with and considered the findings recorded by the First Appellate Court, recorded while setting aside ex-parte judgment and decree. The High Court has set aside the order passed by the First Appellate Court solely on the ground that as the defendant nos. 2 & 3 did not file the written statement and contested the suit, the reopening of the suit would become futile. However, as observed and held by this Court in the case of Sangram Singh (supra) on setting aside the ex-parte decree and on restoration of the suit the parties to the suit shall be put to the same position as they were at the time when the ex-parte judgment and decree was passed and the defendants may not be permitted to file the written statement as no written statement was filed. However, at the same time they can be permitted to participate in the suit proceedings and cross-examine the witnesses. In that view of the matter the impugned judgment and order passed by the High Court is unsustainable. Still, on setting aside the ex-parte judgment and decree, though the defendants who had not filed the written statement, can be permitted to participate in the suit and cross-examine the witnesses. Therefore, the High Court is not right in observing that as no written statement was filed by the defendants, the reopening of the suit by setting aside ex-parte judgment and decree will become futile. As observed hereinabove the High Court has not at all observed anything on the correctness of the order passed by the First Appellate Court setting aside the ex-parte judgment and decree on merits.
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Kays Construction Company Private Limited Vs. Its Workmen | reinstatement of the clerks in question.14. The decision in this appeal has emphasized that in dealing with industrial disputes the tribunals should not be unduly influenced by academic questions of law and that they should make an attempt to deal with the merits of each case according to its facts and circumstances. As pointed out in Niemla Textile Finishing Mills Ltd. v. The 2nd Punjab Industrial Tribunal, 1957 SCR 335 : ( (S) AIR 1957 SC 329 ) " the functions of industrial tribunals while adjudicating upon disputes referred to them for adjudication are quite different from those of arbitration tribunals that deal in matters of commercial dispute".This Court then held that an industrial dispute did arise between the respondent purchaser and the appellants and that the Labour Appellate Tribunal was in error in reversing the award principally on the consideration of the abstract point of law as to the rights and liabilities of the successor like the respondent.15. Mr. Sastri fairly conceded that if facts found by the tribunal in the present case are accepted as correct then the present case would be substantially similar to the case of Dahingeapara Tea Estate, AIR 1958 SC 1026 (supra). He, however, contends that there is one material point on which the present ease can be distinguished. In the present ease, according to Mr. Sastri, no industrial dispute really arose between the appellant an respondent 1. His argument is that the employees, the claim for whose reinstatement has raised the present dispute are not workmen of the appellant and he suggests that it is not shown that respondent 1 union has on its register any of the appellants workmen.Mr. Sastri concedes that it is well settled that a dispute which validly gives rise to a reference under the Industrial Disputes Act need not necessarily be a dispute directly between an employer and his workmen. The definition of the expression industrial dispute is wide enough to cover a dispute raised by the employers workmen in regard to the non-employment of others who may not be his workmen at the material time.He, however contends that none of the appellants workmen has taken up the present dispute and so an industrial dispute cannot be said to arise between the appellant and respondent 1 and that makes the reference invalid. There is no doubt that one of the points made by respondent 1 was that the appellant is the continuer of, and successor to, respondent 2 and that respondent 1 had taken up the cause of the employees mentioned in the annexure who had not been employed by the appellant. If the appellants case was that respondent 1 could not raise an industrial dispute in this matter since none of the workmen of the appellant was its member, it should have taken this plea before the tribunal. No doubt it does appear that the appellant desired that persons who wanted employment under it should discontinue their connection with the union and Mr. Sastri wanted to refer to the evidence of Dr. Trivedi, the President of the Union, in support of his argument that such of the workmen whom the appellant has employed can be safely taken to have resigned their connection with the union. We do not think that it is open to Mr. Sastri to take such a plea at this stage. The statements made by Dr. Trivedi to which Mr. Sastri has referred clearly show that Dr. Trivedi was not prepared to issue the requisite certificates to the workmen who wanted employment with the appellant that they had ceased to be the members of the union. All that Dr. Trivedi asked the General Secretary of the Union to do was to issue statements of the outstanding dues of the workmen in question so that they might produce the said certificates to the management of the appellant in their effort to satisfy the management that they were not members of the union because they had not cleared off their dues. The workmen apparently adopted this device to obtain employment from the appellant; but that cannot assist Mr. Sastris argument because the record shows that most of them, after obtaining employment, wrote back to the union that they continued to be the members of the union; apart from this consideration, however, the plea sought to be raised by Mr. Sastri is a plea of fact which affected the tribunals jurisdiction and having regard to the case specifically set out by respondent 1. against the appellant it was clearly necessary for the appellant to have made out this plea in clear terms. Evidence could then have been led on the point to enable the tribunal to decide whether respondent 1 was entitled to raise the present dispute with the appellant as an industrial dispute under the Industrial Disputes Act and whether the reference to it was valid. On the record as it stands there would be no justification for assuming that respondent 1 which has raised the present dispute cannot do so because none of the appellants employees is its member and so it cannot claim to represent them.16. Thus the only ground on which Mr. Sastri attempted to distinguish the present case from the case of the Workmen of Dahingeapara Tea Estate, ((S) AIR 1957 SC 329 ) (supra) fails and so we must hold that the view taken by this Court in the said case governs the decision of the present appeal. A valid reference was made to the tribunal in regard to an industrial dispute between the appellant and respondent 1 and the tribunal, having considered the relevant facts, has come to the conclusion that the workmen in question have been improperly locked out and are entitled to reinstatement. Having regard to the material findings of fact recorded by the tribunal in the present case, we do not think that the validity of the award can be challenged by the appellant on abstract legal grounds sought to be raised by Mr. Sastri before us. | 0[ds]13. In this appeal also the larger question about the liability of the successor qua the workmen in the employment of his predecessor under the principles of industrial adjudication was raised; but the learned Judges thought that it was not necessary to decide the said abstract question of law.Nevertheless they examined the merits of the rival contentions between the parties and held that the decision of the tribunal directing reinstatement of certain workmen was right and the contrary view taken by the Labour Appellate Tribunal was not justified. It appears that the respondent in the said case was the purchaser of the tea estate in question, By Cl. 9 of the agreement of sale the purchaser had been expressly given the option of taking such members of the staff of the tea estate as it shall in its absolute discretion consider useful and efficient for running the tea estate. This agreement was made on November 7, 1953 but had to come into force on January 1, 1954. On December 22, 1953, the respondent gave notice to certain employees. On December 30, 1953, the vendor purported to terminate the services of its employees with effect from December 31, 1953. It appeared that the respondent had employed all labourers and three of the clerks who were in the employment of the vendor. Sixteen clerks were, however, not employed by him. The respondents employees thereupon raised an industrial dispute in regard to theof the said sixteen clerks. The tribunal had ordered their reinstatement but the Labour Appellate Tribunal had reversed the award of the tribunal on the ground that the respondent as purchaser of the tea estate was not bound to reinstate them. This Court set aside the order of the Labour Appellate Tribunal and restored the award of the tribunal for the reinstatement of the clerks in question.14. The decision in this appeal has emphasized that in dealing with industrial disputes the tribunals should not be unduly influenced by academic questions of law and that they should make an attempt to deal with the merits of each case according to its facts and circumstances. As pointed out in Niemla Textile Finishing Mills Ltd. v. The 2nd Punjab Industrial Tribunal, 1957 SCR 335 : ( (S) AIR 1957 SC 329 ) " the functions of industrial tribunals while adjudicating upon disputes referred to them for adjudication are quite different from those of arbitration tribunals that deal in matters of commercial dispute".This Court then held that an industrial dispute did arise between the respondent purchaser and the appellants and that the Labour Appellate Tribunal was in error in reversing the award principally on the consideration of the abstract point of law as to the rights and liabilities of the successor like the respondent.15.Mr. Sastri fairly conceded that if facts found by the tribunal in the present case are accepted as correct then the present case would be substantially similar to the case of Dahingeapara Tea Estate, AIR 1958 SC 1026 (supra). He, however, contends that there is one material point on which the present ease can be distinguished. In the present ease, according to Mr. Sastri, no industrial dispute really arose between the appellant an respondent 1. His argument is that the employees, the claim for whose reinstatement has raised the present dispute are not workmen of the appellant and he suggests that it is not shown that respondent 1 union has on its register any of the appellants workmen.Mr. Sastri concedes that it is well settled that a dispute which validly gives rise to a reference under the Industrial Disputes Act need not necessarily be a dispute directly between an employer and his workmen.The definition of the expression industrial dispute is wide enough to cover a dispute raised by the employers workmen in regard to theof others who may not be his workmen at the material time.He, however contends that none of the appellants workmen has taken up the present dispute and so an industrial dispute cannot be said to arise between the appellant and respondent 1 and that makes the reference invalid. There is no doubt that one of the points made by respondent 1 was that the appellant is the continuer of, and successor to, respondent 2 and that respondent 1 had taken up the cause of the employees mentioned in the annexure who had not been employed by the appellant. If the appellants case was that respondent 1 could not raise an industrial dispute in this matter since none of the workmen of the appellant was its member, it should have taken this plea before the tribunal. No doubt it does appear that the appellant desired that persons who wanted employment under it should discontinue their connection with the union and Mr. Sastri wanted to refer to the evidence of Dr. Trivedi, the President of the Union, in support of his argument that such of the workmen whom the appellant has employed can be safely taken to have resigned their connection with the union. We do not think that it is open to Mr. Sastri to take such a plea at this stage. The statements made by Dr. Trivedi to which Mr. Sastri has referred clearly show that Dr. Trivedi was not prepared to issue the requisite certificates to the workmen who wanted employment with the appellant that they had ceased to be the members of the union. All that Dr. Trivedi asked the General Secretary of the Union to do was to issue statements of the outstanding dues of the workmen in question so that they might produce the said certificates to the management of the appellant in their effort to satisfy the management that they were not members of the union because they had not cleared off their dues. The workmen apparently adopted this device to obtain employment from the appellant; but that cannot assist Mr. Sastris argument because the record shows that most of them, after obtaining employment, wrote back to the union that they continued to be the members of the union; apart from this consideration, however, the plea sought to be raised by Mr. Sastri is a plea of fact which affected the tribunals jurisdiction and having regard to the case specifically set out by respondent 1. against the appellant it was clearly necessary for the appellant to have made out this plea in clear terms. Evidence could then have been led on the point to enable the tribunal to decide whether respondent 1 was entitled to raise the present dispute with the appellant as an industrial dispute under the Industrial Disputes Act and whether the reference to it was valid. On the record as it stands there would be no justification for assuming that respondent 1 which has raised the present dispute cannot do so because none of the appellants employees is its member and so it cannot claim to represent them.16. Thus the only ground on which Mr. Sastri attempted to distinguish the present case from the case of the Workmen of Dahingeapara Tea Estate, ((S) AIR 1957 SC 329 ) (supra) fails and so we must hold that the view taken by this Court in the said case governs the decision of the present appeal. A valid reference was made to the tribunal in regard to an industrial dispute between the appellant and respondent 1 and the tribunal, having considered the relevant facts, has come to the conclusion that the workmen in question have been improperly locked out and are entitled to reinstatement. Having regard to the material findings of fact recorded by the tribunal in the present case, we do not think that the validity of the award can be challenged by the appellant on abstract legal grounds sought to be raised by Mr. Sastri before us. | 0 | 4,169 | 1,380 | ### 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:
reinstatement of the clerks in question.14. The decision in this appeal has emphasized that in dealing with industrial disputes the tribunals should not be unduly influenced by academic questions of law and that they should make an attempt to deal with the merits of each case according to its facts and circumstances. As pointed out in Niemla Textile Finishing Mills Ltd. v. The 2nd Punjab Industrial Tribunal, 1957 SCR 335 : ( (S) AIR 1957 SC 329 ) " the functions of industrial tribunals while adjudicating upon disputes referred to them for adjudication are quite different from those of arbitration tribunals that deal in matters of commercial dispute".This Court then held that an industrial dispute did arise between the respondent purchaser and the appellants and that the Labour Appellate Tribunal was in error in reversing the award principally on the consideration of the abstract point of law as to the rights and liabilities of the successor like the respondent.15. Mr. Sastri fairly conceded that if facts found by the tribunal in the present case are accepted as correct then the present case would be substantially similar to the case of Dahingeapara Tea Estate, AIR 1958 SC 1026 (supra). He, however, contends that there is one material point on which the present ease can be distinguished. In the present ease, according to Mr. Sastri, no industrial dispute really arose between the appellant an respondent 1. His argument is that the employees, the claim for whose reinstatement has raised the present dispute are not workmen of the appellant and he suggests that it is not shown that respondent 1 union has on its register any of the appellants workmen.Mr. Sastri concedes that it is well settled that a dispute which validly gives rise to a reference under the Industrial Disputes Act need not necessarily be a dispute directly between an employer and his workmen. The definition of the expression industrial dispute is wide enough to cover a dispute raised by the employers workmen in regard to the non-employment of others who may not be his workmen at the material time.He, however contends that none of the appellants workmen has taken up the present dispute and so an industrial dispute cannot be said to arise between the appellant and respondent 1 and that makes the reference invalid. There is no doubt that one of the points made by respondent 1 was that the appellant is the continuer of, and successor to, respondent 2 and that respondent 1 had taken up the cause of the employees mentioned in the annexure who had not been employed by the appellant. If the appellants case was that respondent 1 could not raise an industrial dispute in this matter since none of the workmen of the appellant was its member, it should have taken this plea before the tribunal. No doubt it does appear that the appellant desired that persons who wanted employment under it should discontinue their connection with the union and Mr. Sastri wanted to refer to the evidence of Dr. Trivedi, the President of the Union, in support of his argument that such of the workmen whom the appellant has employed can be safely taken to have resigned their connection with the union. We do not think that it is open to Mr. Sastri to take such a plea at this stage. The statements made by Dr. Trivedi to which Mr. Sastri has referred clearly show that Dr. Trivedi was not prepared to issue the requisite certificates to the workmen who wanted employment with the appellant that they had ceased to be the members of the union. All that Dr. Trivedi asked the General Secretary of the Union to do was to issue statements of the outstanding dues of the workmen in question so that they might produce the said certificates to the management of the appellant in their effort to satisfy the management that they were not members of the union because they had not cleared off their dues. The workmen apparently adopted this device to obtain employment from the appellant; but that cannot assist Mr. Sastris argument because the record shows that most of them, after obtaining employment, wrote back to the union that they continued to be the members of the union; apart from this consideration, however, the plea sought to be raised by Mr. Sastri is a plea of fact which affected the tribunals jurisdiction and having regard to the case specifically set out by respondent 1. against the appellant it was clearly necessary for the appellant to have made out this plea in clear terms. Evidence could then have been led on the point to enable the tribunal to decide whether respondent 1 was entitled to raise the present dispute with the appellant as an industrial dispute under the Industrial Disputes Act and whether the reference to it was valid. On the record as it stands there would be no justification for assuming that respondent 1 which has raised the present dispute cannot do so because none of the appellants employees is its member and so it cannot claim to represent them.16. Thus the only ground on which Mr. Sastri attempted to distinguish the present case from the case of the Workmen of Dahingeapara Tea Estate, ((S) AIR 1957 SC 329 ) (supra) fails and so we must hold that the view taken by this Court in the said case governs the decision of the present appeal. A valid reference was made to the tribunal in regard to an industrial dispute between the appellant and respondent 1 and the tribunal, having considered the relevant facts, has come to the conclusion that the workmen in question have been improperly locked out and are entitled to reinstatement. Having regard to the material findings of fact recorded by the tribunal in the present case, we do not think that the validity of the award can be challenged by the appellant on abstract legal grounds sought to be raised by Mr. Sastri before us.
### Response:
0
### Explanation:
of the clerks in question.14. The decision in this appeal has emphasized that in dealing with industrial disputes the tribunals should not be unduly influenced by academic questions of law and that they should make an attempt to deal with the merits of each case according to its facts and circumstances. As pointed out in Niemla Textile Finishing Mills Ltd. v. The 2nd Punjab Industrial Tribunal, 1957 SCR 335 : ( (S) AIR 1957 SC 329 ) " the functions of industrial tribunals while adjudicating upon disputes referred to them for adjudication are quite different from those of arbitration tribunals that deal in matters of commercial dispute".This Court then held that an industrial dispute did arise between the respondent purchaser and the appellants and that the Labour Appellate Tribunal was in error in reversing the award principally on the consideration of the abstract point of law as to the rights and liabilities of the successor like the respondent.15.Mr. Sastri fairly conceded that if facts found by the tribunal in the present case are accepted as correct then the present case would be substantially similar to the case of Dahingeapara Tea Estate, AIR 1958 SC 1026 (supra). He, however, contends that there is one material point on which the present ease can be distinguished. In the present ease, according to Mr. Sastri, no industrial dispute really arose between the appellant an respondent 1. His argument is that the employees, the claim for whose reinstatement has raised the present dispute are not workmen of the appellant and he suggests that it is not shown that respondent 1 union has on its register any of the appellants workmen.Mr. Sastri concedes that it is well settled that a dispute which validly gives rise to a reference under the Industrial Disputes Act need not necessarily be a dispute directly between an employer and his workmen.The definition of the expression industrial dispute is wide enough to cover a dispute raised by the employers workmen in regard to theof others who may not be his workmen at the material time.He, however contends that none of the appellants workmen has taken up the present dispute and so an industrial dispute cannot be said to arise between the appellant and respondent 1 and that makes the reference invalid. There is no doubt that one of the points made by respondent 1 was that the appellant is the continuer of, and successor to, respondent 2 and that respondent 1 had taken up the cause of the employees mentioned in the annexure who had not been employed by the appellant. If the appellants case was that respondent 1 could not raise an industrial dispute in this matter since none of the workmen of the appellant was its member, it should have taken this plea before the tribunal. No doubt it does appear that the appellant desired that persons who wanted employment under it should discontinue their connection with the union and Mr. Sastri wanted to refer to the evidence of Dr. Trivedi, the President of the Union, in support of his argument that such of the workmen whom the appellant has employed can be safely taken to have resigned their connection with the union. We do not think that it is open to Mr. Sastri to take such a plea at this stage. The statements made by Dr. Trivedi to which Mr. Sastri has referred clearly show that Dr. Trivedi was not prepared to issue the requisite certificates to the workmen who wanted employment with the appellant that they had ceased to be the members of the union. All that Dr. Trivedi asked the General Secretary of the Union to do was to issue statements of the outstanding dues of the workmen in question so that they might produce the said certificates to the management of the appellant in their effort to satisfy the management that they were not members of the union because they had not cleared off their dues. The workmen apparently adopted this device to obtain employment from the appellant; but that cannot assist Mr. Sastris argument because the record shows that most of them, after obtaining employment, wrote back to the union that they continued to be the members of the union; apart from this consideration, however, the plea sought to be raised by Mr. Sastri is a plea of fact which affected the tribunals jurisdiction and having regard to the case specifically set out by respondent 1. against the appellant it was clearly necessary for the appellant to have made out this plea in clear terms. Evidence could then have been led on the point to enable the tribunal to decide whether respondent 1 was entitled to raise the present dispute with the appellant as an industrial dispute under the Industrial Disputes Act and whether the reference to it was valid. On the record as it stands there would be no justification for assuming that respondent 1 which has raised the present dispute cannot do so because none of the appellants employees is its member and so it cannot claim to represent them.16. Thus the only ground on which Mr. Sastri attempted to distinguish the present case from the case of the Workmen of Dahingeapara Tea Estate, ((S) AIR 1957 SC 329 ) (supra) fails and so we must hold that the view taken by this Court in the said case governs the decision of the present appeal. A valid reference was made to the tribunal in regard to an industrial dispute between the appellant and respondent 1 and the tribunal, having considered the relevant facts, has come to the conclusion that the workmen in question have been improperly locked out and are entitled to reinstatement. Having regard to the material findings of fact recorded by the tribunal in the present case, we do not think that the validity of the award can be challenged by the appellant on abstract legal grounds sought to be raised by Mr. Sastri before us.
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R.L. Kalathia & Co Vs. State of Gujarat | Conditions of Contract, the same is meant to be a safeguard as against frivolous claims after final measurement. Having regard to the decision in Reshmi Constructions it can no longer be said that such a clause in the contract would be an absolute bar to a contractor raising claims which are genuine, even after the submission of such no-claim certificate.19. We are convinced from the materials on record that in the instant case the appellant also has a genuine claim which was considered in great detail by the arbitrator who was none other than the Counsel of the respondent Railways.” 8. In National Insurance Company Limitedv. Boghara Polyfab Private Ltd., VIII (2008) SLT 368=(2009) 1 SCC 267 , the question involved was whether a dispute raised by an insured, after giving a full and final discharge voucher to the insurer, can be referred to arbitration. The following conclusion in para 26 is relevant: “26. When we refer to a discharge of contract by an agreement signed by both the parties or by execution of a full and final discharge voucher/receipt by one of the parties, we refer to an agreement or discharge voucher which is validly and voluntarily executed. If the party which has executed the discharge agreement or discharge voucher, alleges that the execution of such discharge agreement or voucher was on account of fraud/coercion/undue influence practised by the other party and is able to establish the same, then obviously the discharge of the contract by such agreement/voucher is rendered void and cannot be acted upon. Consequently, any dispute raised by such party would be arbitrable.” 9. From the above conclusions of this Court, the following principles emerge: (i) Merely because the contractor has issued “No Due Certificate”, if there is acceptable claim, the Court cannot reject the same on the ground of issuance of “No Due Certificate”. (ii) Inasmuch as it is common that unless a discharge certificate is given in advance by the contractor, payment of bills are generally delayed, hence such a clause in the contract would not be an absolute bar to a contractor raising claims which are genuine at a later date even after submission of such “No-claim Certificate”. (iii) Even after execution of full and final discharge voucher/receipt by one of the parties, if the said party able to establish that he is entitled to further amount for which he is having adequate materials, is not barred from claiming such amount merely because of acceptance of the final bill by mentioning “without prejudice” or by issuing ‘No Due Certificate’. 10. In the light of the above principles, we are convinced from the materials on record that in the instant case, the appellant/plaintiff also had a genuine claim which was considered in great detail by the trial Court and supported by oral and documentary evidence. Though the High Court has not adverted to any of the factual details/claim of the plaintiff except reversing the judgment and decree of the trial Court on the principle of estoppel, we have carefully perused and considered the detailed discussion and ultimate conclusion of the trial Judge. Though we initially intend to remit the matter to the High Court for consideration in respect of merits of the claim and the judgment and decree of the trial Court, inasmuch as the contract was executed on 5.6.1970 and work had been completed in August, 1973, final bill was raised on 31.3.1974 and additional claim was raised on 16.7.1976, to curtail the period of litigation, we scrutinized all the issues framed by the trial Court, its discussion and ultimate conclusion based on the pleadings and supported by the materials. The trial Court framed the following issues: “The following issues were framed at Ex. 16:1. Whether Plaintiff proves that he executed extra work of change and entitled to claim Rs. 3,600/-?2. Whether Plaintiff proves that he did extra work of C.O.T. filing and hence entitled to claim Rs. 1,800/-?3. Whether Plaintiff is entitled to claim Rs. 15,625/- in connection with excavated stuff?4. Whether Plaintiff is entitled to claim Rs. 7,585/- for guide bunds?5. Whether Plaintiff is entitled to claim Rs 5,640/- for pitching work?6. Whether Petitioner is entitled to claim Rs. 13,244/- for providing sand filter in river.?7. Whether Plaintiff is entitled to claim Rs. 1,375/- for waster weir back filling?8. Whether Plaintiff is entitled to claim Rs. 30,600/- for extra item of masonry?9. Whether Plaintiff is entitled to claim Rs. 14,339.84 for breach of condition and irregular payment?10. Whether Plaintiff is entitled to claim Rs 12,386.64 ps. for providing heavy gate?11. Whether Plaintiff is entitled to claim Rs. 1,37,478.17 ps for rising of prices?12. Whether Plaintiff is entitled to claim Rs. 30,000/- for establishment charges?13. Whether Plaintiff is entitled to claim Rs. 93,049.76 towards interest?14. Whether notice under Section 80 of the CPC is defective?15. Whether Plaintiff is estopped from filing suit in view of fact that he has signed and accepted bills prepared by Defendant?16. Whether suit is barred by time?17. Whether Court has jurisdiction to decide the present suit?18. What order and decree?” 11. We have already considered and answered the issue relating to No. 15 in the earlier paragraphs and held in favour of the plaintiff. In respect of other issues relating to execution of extra work, excavation, construction of guide bunds, pitching work, providing sand filter in river, waste weir back filling, extra masonary, providing heavy gate, additional amount due to raising of prices, additional amount towards establishment charges, interest etc., the trial Court based on the materials placed accepted certain items in toto and rejected certain claims and ultimately granted a decree for a sum of Rs. 2,27,758/- with proportionate costs and interest @ 6 per cent per annum from the date of the suit till realization. On going through the materials placed, relevant issues framed, ultimate discussion and conclusion arrived at by the trial Court, we fully agree with the same and the plaintiff is entitled to the said amount as granted by the trial Court. | 1[ds]28. Further, necessitas non habet legem is an age-old maxim which means necessity knows no law. A person may sometimes have to succumb to the pressure of the other party to the bargain who is in a stronger position.A glance at the said clause will immediately indicate that a no-claim certificate is required to be submitted by a contractor once the works are finally measured up. In the instant case the work was yet to be completed and there is nothing to indicate that the works, as undertaken by the contractor, had been finally measured and on the basis of the same a no-claim certificate had been issued by the appellant. On the other hand, even the first arbitrator, who had been appointed, had come to a finding that no-claim certificate had been given under coercion and duress. It is the Division Bench of the Calcutta High Court which, for the first time, came to a conclusion that such no-claim certificate had not been submitted under coercion and duress.18. From the submissions made on behalf of the respective parties and in particular from the submissions made on behalf of the appellant, it is apparent that unless a discharge certificate is given in advance, payment of bills are generally delayed. Although, Clause 43(2) has been included in the General Conditions of Contract, the same is meant to be a safeguard as against frivolous claims after final measurement. Having regard to the decision in Reshmi Constructions it can no longer be said that such a clause in the contract would be an absolute bar to a contractor raising claims which are genuine, even after the submission of such no-claim certificate.19. We are convinced from the materials on record that in the instant case the appellant also has a genuine claim which was considered in great detail by the arbitrator who was none other than the Counsel of the respondent Railways.In National Insurance Company Limitedv. Boghara Polyfab Private Ltd., VIII (2008) SLT 368=(2009) 1 SCC 267 , the question involved was whether a dispute raised by an insured, after giving a full and final discharge voucher to the insurer, can be referred to arbitration. The following conclusion in para 26 isWe have already considered and answered the issue relating to No. 15 in the earlier paragraphs and held in favour of the plaintiff. In respect of other issues relating to execution of extra work, excavation, construction of guide bunds, pitching work, providing sand filter in river, waste weir back filling, extra masonary, providing heavy gate, additional amount due to raising of prices, additional amount towards establishment charges, interest etc., the trial Court based on the materials placed accepted certain items in toto and rejected certain claims and ultimately granted a decree for a sum of Rs. 2,27,758/- with proportionate costs and interest @ 6 per cent per annum from the date of the suit till realization. On going through the materials placed, relevant issues framed, ultimate discussion and conclusion arrived at by the trial Court, we fully agree with the same and the plaintiff is entitled to the said amount as granted by the trial Court. | 1 | 3,562 | 581 | ### 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:
Conditions of Contract, the same is meant to be a safeguard as against frivolous claims after final measurement. Having regard to the decision in Reshmi Constructions it can no longer be said that such a clause in the contract would be an absolute bar to a contractor raising claims which are genuine, even after the submission of such no-claim certificate.19. We are convinced from the materials on record that in the instant case the appellant also has a genuine claim which was considered in great detail by the arbitrator who was none other than the Counsel of the respondent Railways.” 8. In National Insurance Company Limitedv. Boghara Polyfab Private Ltd., VIII (2008) SLT 368=(2009) 1 SCC 267 , the question involved was whether a dispute raised by an insured, after giving a full and final discharge voucher to the insurer, can be referred to arbitration. The following conclusion in para 26 is relevant: “26. When we refer to a discharge of contract by an agreement signed by both the parties or by execution of a full and final discharge voucher/receipt by one of the parties, we refer to an agreement or discharge voucher which is validly and voluntarily executed. If the party which has executed the discharge agreement or discharge voucher, alleges that the execution of such discharge agreement or voucher was on account of fraud/coercion/undue influence practised by the other party and is able to establish the same, then obviously the discharge of the contract by such agreement/voucher is rendered void and cannot be acted upon. Consequently, any dispute raised by such party would be arbitrable.” 9. From the above conclusions of this Court, the following principles emerge: (i) Merely because the contractor has issued “No Due Certificate”, if there is acceptable claim, the Court cannot reject the same on the ground of issuance of “No Due Certificate”. (ii) Inasmuch as it is common that unless a discharge certificate is given in advance by the contractor, payment of bills are generally delayed, hence such a clause in the contract would not be an absolute bar to a contractor raising claims which are genuine at a later date even after submission of such “No-claim Certificate”. (iii) Even after execution of full and final discharge voucher/receipt by one of the parties, if the said party able to establish that he is entitled to further amount for which he is having adequate materials, is not barred from claiming such amount merely because of acceptance of the final bill by mentioning “without prejudice” or by issuing ‘No Due Certificate’. 10. In the light of the above principles, we are convinced from the materials on record that in the instant case, the appellant/plaintiff also had a genuine claim which was considered in great detail by the trial Court and supported by oral and documentary evidence. Though the High Court has not adverted to any of the factual details/claim of the plaintiff except reversing the judgment and decree of the trial Court on the principle of estoppel, we have carefully perused and considered the detailed discussion and ultimate conclusion of the trial Judge. Though we initially intend to remit the matter to the High Court for consideration in respect of merits of the claim and the judgment and decree of the trial Court, inasmuch as the contract was executed on 5.6.1970 and work had been completed in August, 1973, final bill was raised on 31.3.1974 and additional claim was raised on 16.7.1976, to curtail the period of litigation, we scrutinized all the issues framed by the trial Court, its discussion and ultimate conclusion based on the pleadings and supported by the materials. The trial Court framed the following issues: “The following issues were framed at Ex. 16:1. Whether Plaintiff proves that he executed extra work of change and entitled to claim Rs. 3,600/-?2. Whether Plaintiff proves that he did extra work of C.O.T. filing and hence entitled to claim Rs. 1,800/-?3. Whether Plaintiff is entitled to claim Rs. 15,625/- in connection with excavated stuff?4. Whether Plaintiff is entitled to claim Rs. 7,585/- for guide bunds?5. Whether Plaintiff is entitled to claim Rs 5,640/- for pitching work?6. Whether Petitioner is entitled to claim Rs. 13,244/- for providing sand filter in river.?7. Whether Plaintiff is entitled to claim Rs. 1,375/- for waster weir back filling?8. Whether Plaintiff is entitled to claim Rs. 30,600/- for extra item of masonry?9. Whether Plaintiff is entitled to claim Rs. 14,339.84 for breach of condition and irregular payment?10. Whether Plaintiff is entitled to claim Rs 12,386.64 ps. for providing heavy gate?11. Whether Plaintiff is entitled to claim Rs. 1,37,478.17 ps for rising of prices?12. Whether Plaintiff is entitled to claim Rs. 30,000/- for establishment charges?13. Whether Plaintiff is entitled to claim Rs. 93,049.76 towards interest?14. Whether notice under Section 80 of the CPC is defective?15. Whether Plaintiff is estopped from filing suit in view of fact that he has signed and accepted bills prepared by Defendant?16. Whether suit is barred by time?17. Whether Court has jurisdiction to decide the present suit?18. What order and decree?” 11. We have already considered and answered the issue relating to No. 15 in the earlier paragraphs and held in favour of the plaintiff. In respect of other issues relating to execution of extra work, excavation, construction of guide bunds, pitching work, providing sand filter in river, waste weir back filling, extra masonary, providing heavy gate, additional amount due to raising of prices, additional amount towards establishment charges, interest etc., the trial Court based on the materials placed accepted certain items in toto and rejected certain claims and ultimately granted a decree for a sum of Rs. 2,27,758/- with proportionate costs and interest @ 6 per cent per annum from the date of the suit till realization. On going through the materials placed, relevant issues framed, ultimate discussion and conclusion arrived at by the trial Court, we fully agree with the same and the plaintiff is entitled to the said amount as granted by the trial Court.
### Response:
1
### Explanation:
28. Further, necessitas non habet legem is an age-old maxim which means necessity knows no law. A person may sometimes have to succumb to the pressure of the other party to the bargain who is in a stronger position.A glance at the said clause will immediately indicate that a no-claim certificate is required to be submitted by a contractor once the works are finally measured up. In the instant case the work was yet to be completed and there is nothing to indicate that the works, as undertaken by the contractor, had been finally measured and on the basis of the same a no-claim certificate had been issued by the appellant. On the other hand, even the first arbitrator, who had been appointed, had come to a finding that no-claim certificate had been given under coercion and duress. It is the Division Bench of the Calcutta High Court which, for the first time, came to a conclusion that such no-claim certificate had not been submitted under coercion and duress.18. From the submissions made on behalf of the respective parties and in particular from the submissions made on behalf of the appellant, it is apparent that unless a discharge certificate is given in advance, payment of bills are generally delayed. Although, Clause 43(2) has been included in the General Conditions of Contract, the same is meant to be a safeguard as against frivolous claims after final measurement. Having regard to the decision in Reshmi Constructions it can no longer be said that such a clause in the contract would be an absolute bar to a contractor raising claims which are genuine, even after the submission of such no-claim certificate.19. We are convinced from the materials on record that in the instant case the appellant also has a genuine claim which was considered in great detail by the arbitrator who was none other than the Counsel of the respondent Railways.In National Insurance Company Limitedv. Boghara Polyfab Private Ltd., VIII (2008) SLT 368=(2009) 1 SCC 267 , the question involved was whether a dispute raised by an insured, after giving a full and final discharge voucher to the insurer, can be referred to arbitration. The following conclusion in para 26 isWe have already considered and answered the issue relating to No. 15 in the earlier paragraphs and held in favour of the plaintiff. In respect of other issues relating to execution of extra work, excavation, construction of guide bunds, pitching work, providing sand filter in river, waste weir back filling, extra masonary, providing heavy gate, additional amount due to raising of prices, additional amount towards establishment charges, interest etc., the trial Court based on the materials placed accepted certain items in toto and rejected certain claims and ultimately granted a decree for a sum of Rs. 2,27,758/- with proportionate costs and interest @ 6 per cent per annum from the date of the suit till realization. On going through the materials placed, relevant issues framed, ultimate discussion and conclusion arrived at by the trial Court, we fully agree with the same and the plaintiff is entitled to the said amount as granted by the trial Court.
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STATE OF U.P Vs. GAYATRI PRASAD PRAJAPATI | 10.06.2020 has been brought on record, the medical board report dated 10.06.2020 states:- To, Chief Medical Officer, Lucknow, uttar Pradesh. Respected Sir, With reference to letter number IMAGE HERE 2o19/6o72-5 dated 08/08/2020 and instructions from Director, Dr. RML Institute of Medical Sciences, Lucknow, UP, we were nominated as members of medical board under the chairmanship of C.M.O. Lucknow. After closely going through the medical records of Mr. Gayatri Prajapati aged 54 years, male from district jail hospital, Lucknow and King Georges Medical University, Lucknow the following observations were made:- l. The patient is suffering from type-2 diabetes mellitus, benign prostate enlargement, renal dysfunction, low back pain related to seronegative spondylorthropathy. 2.There is no major disparity in the treatment of the patient from both the hospitals and considering the current reports, patient can continue treatment at jail hospital but in view of renal dysfunction and seronagative spondylorthropathy, consultation from nephrologist and orthopedician is advisable. 3. Patient needs control of blood sugar under supervision of endocrinologist. 11. Before the High Court, an affidavit was also filed by the State dated 12.06.2020 bringing on record medical treatment report of S.G.P.G.I.M.S. The affidavit clearly stated that S.G.P.G.I.M.S., Lucknow offers unmatchable and unsurpassable medical expertise in numerous field and patients from far off places come to S.G.P.G.I.M.S., Lucknow for availing specialised medical treatment. 12. The High Court by the impugned order dated 03.09.2020 has directed for release of the respondent on medical grounds, although the order runs in 23 pages but it is the paragraph 27 of the judgment, which gives the reasoning for grant of interim bail. Paragraph 27 is as follows:- 27. Having considered the facts and circumstances of the present case and the applicants medical condition, which is confirmed by the medical status report, it shows that the applicant is suffering from disease i.e. UTI with Diabetes mellitus with HTN with Bamboo spine with seronegative Spondylorthropathy; proper treatment is not available in K.G.M.U. Hospital, Lucknow and doctors have advised proper treatment from multiple super specialties, at a tertiary care super specialty hospital; further threat to the applicants health in the prevailing times of Covid-19 pandemic is real and imminent; and in view of the assurances extended on behalf of the applicant that he shall not apprehend or influence the prosecutix and her family members, this Court is persuaded to grant the applicant, Gayatri Prasad Prajapati, interim bail for a period of two months from the date of his release, subject to the following conditions: XXXXXXXXXXXX (ii) The applicant shall not leave the country without prior permission of the trial court and shall ordinarily reside at a place of residence, as assured, far from the place of residence of the prosecutrix and her immediate family; and the complete address of such place shall be furnished to the Jail Superintendent at the time of release; XXXXXXXXXXXXX 13. The High Court in its judgment relies on following:- (a) Applicants medical condition, which is affirmed by medical status report showing that applicant is suffering from disease, i.e., UTI with Diabetes mellitus with HTN with Bamboo spine with seronegative Spondylorthropathy; (b) Proper treatment is not available in K.G.M.U., Lucknow; (c) Doctors have advised proper treatment from multiple super specialities, at a tertiary care super speciality hospital; and (d) Threat to the applicants health in the prevailing times of COVID-19 pandemic is real and imminent. 14. The medical condition of the respondent, the treatment given and various reports including the report of medical board were on the record. The S.G.P.G.I.M.S. is a super-speciality hospital where the respondent has been referred for specified purposes and report of S.G.P.G.I.M.S. has also been brought on the record as Annexure P-10 alongwith the letter dated 10.06.2020 addressed to Chief Medical Superintendant, S.G.P.G.I.M.S., Lucknow. The medical report of the respondent dated 10.06.2020 in final evaluation states:- Final Evaluation Glycemia : better controlled Hypertension : well controlled Pulmonary consult: Completed, advised as per notes above Urology work-up on- going. 15. The above report of the S.G.P.G.I.M.S., i.e., the super-speciality hospital, which was on the record as well as report of the medical board dated 10.06.2020, which was brought in the notice of the High Court have neither been considered nor referred to by the High Court in the impugned order. When the respondent was being given treatment in the super-speciality hospital, i.e., S.G.P.G.I.M.S. as recommended by K.G.M.U., we fail to see as to what were the shortcomings in the medical treatment offered to respondent, which could have been the basis for grant of interim bail on medical ground. Further, as per condition (ii) mentioned in paragraph 27, the High Court contemplated that respondent shall ordinarily reside at a place of residence, as assured, far from the place of residence of the prosecutrix and her immediate family, thus, the contemplation was that respondent shall reside at his residence. There was no satisfaction recorded by the High Court that treatment offered to respondent was not adequate and he requires any further treatment by any particular medical institute for which it is necessary to release the respondent on interim bail on medical grounds. 16. Dr. Dhawan submits that every person, who is accused of an offence, even if the offence is a serious offence, requires a humane treatment by the prison authorities. There can be no two views with regard to above. Humane treatment to all including an accused is requirement of law. Furthermore, a prisoner, who is suffering from an ailment, has to be given due treatment and care while in prison. 17. Learned counsel for both the parties have referred to Clinical Summary dated 09.09.2020 as well as the letter dated 05.10.2020 of K.G.M.U. referring the respondent to S.G.P.G.I.M.S. for NCV testing. 18. Even as on date, due medical care is being taken of the respondent, which is apparent from the additional documents filed as Annexure A-2 and Annexure A-3 alongwith the application dated 10.10.2020. The High Court, without considering the entire materials on record, has passed the impugned order dated 03.09.2020, which is unsustainable. | 1[ds]8. In the present appeal, our consideration is confined only to the interim bail, which has been granted to the respondent by order dated 03.09.2020. The Bail Application No. 5743 of 2019 being still pending in the High Court, our considerations and observations are only with respect to order granting interim bail and shall have no bearing on the merits of the bail application, which is pending consideration before the High Court.9. From the facts of the case, as noted above, it is clear that on 03.05.2019, the respondent was admitted in K.G.M.U. and after more than seven months discharged on 17.01.2020.14. The medical condition of the respondent, the treatment given and various reports including the report of medical board were on the record. The S.G.P.G.I.M.S. is a super-speciality hospital where the respondent has been referred for specified purposes and report of S.G.P.G.I.M.S. has also been brought on the record as Annexure P-10 alongwith the letter dated 10.06.2020 addressed to Chief Medical Superintendant, S.G.P.G.I.M.S., Lucknow. The medical report of the respondent dated 10.06.2020 in final evaluation states:-Glycemia : better controlledHypertension : well controlledPulmonary consult: Completed, advised as per notes aboveUrology work-up on- going.15. The above report of the S.G.P.G.I.M.S., i.e., the super-speciality hospital, which was on the record as well as report of the medical board dated 10.06.2020, which was brought in the notice of the High Court have neither been considered nor referred to by the High Court in the impugned order. When the respondent was being given treatment in the super-speciality hospital, i.e., S.G.P.G.I.M.S. as recommended by K.G.M.U., we fail to see as to what were the shortcomings in the medical treatment offered to respondent, which could have been the basis for grant of interim bail on medical ground. Further, as per condition (ii) mentioned in paragraph 27, the High Court contemplated that respondent shall ordinarily reside at a place of residence, as assured, far from the place of residence of the prosecutrix and her immediate family, thus, the contemplation was that respondent shall reside at his residence. There was no satisfaction recorded by the High Court that treatment offered to respondent was not adequate and he requires any further treatment by any particular medical institute for which it is necessary to release the respondent on interim bail on medical grounds.18. Even as on date, due medical care is being taken of the respondent, which is apparent from the additional documents filed as Annexure A-2 and Annexure A-3 alongwith the application dated 10.10.2020. The High Court, without considering the entire materials on record, has passed the impugned order dated 03.09.2020, which is unsustainable. | 1 | 2,584 | 492 | ### 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:
10.06.2020 has been brought on record, the medical board report dated 10.06.2020 states:- To, Chief Medical Officer, Lucknow, uttar Pradesh. Respected Sir, With reference to letter number IMAGE HERE 2o19/6o72-5 dated 08/08/2020 and instructions from Director, Dr. RML Institute of Medical Sciences, Lucknow, UP, we were nominated as members of medical board under the chairmanship of C.M.O. Lucknow. After closely going through the medical records of Mr. Gayatri Prajapati aged 54 years, male from district jail hospital, Lucknow and King Georges Medical University, Lucknow the following observations were made:- l. The patient is suffering from type-2 diabetes mellitus, benign prostate enlargement, renal dysfunction, low back pain related to seronegative spondylorthropathy. 2.There is no major disparity in the treatment of the patient from both the hospitals and considering the current reports, patient can continue treatment at jail hospital but in view of renal dysfunction and seronagative spondylorthropathy, consultation from nephrologist and orthopedician is advisable. 3. Patient needs control of blood sugar under supervision of endocrinologist. 11. Before the High Court, an affidavit was also filed by the State dated 12.06.2020 bringing on record medical treatment report of S.G.P.G.I.M.S. The affidavit clearly stated that S.G.P.G.I.M.S., Lucknow offers unmatchable and unsurpassable medical expertise in numerous field and patients from far off places come to S.G.P.G.I.M.S., Lucknow for availing specialised medical treatment. 12. The High Court by the impugned order dated 03.09.2020 has directed for release of the respondent on medical grounds, although the order runs in 23 pages but it is the paragraph 27 of the judgment, which gives the reasoning for grant of interim bail. Paragraph 27 is as follows:- 27. Having considered the facts and circumstances of the present case and the applicants medical condition, which is confirmed by the medical status report, it shows that the applicant is suffering from disease i.e. UTI with Diabetes mellitus with HTN with Bamboo spine with seronegative Spondylorthropathy; proper treatment is not available in K.G.M.U. Hospital, Lucknow and doctors have advised proper treatment from multiple super specialties, at a tertiary care super specialty hospital; further threat to the applicants health in the prevailing times of Covid-19 pandemic is real and imminent; and in view of the assurances extended on behalf of the applicant that he shall not apprehend or influence the prosecutix and her family members, this Court is persuaded to grant the applicant, Gayatri Prasad Prajapati, interim bail for a period of two months from the date of his release, subject to the following conditions: XXXXXXXXXXXX (ii) The applicant shall not leave the country without prior permission of the trial court and shall ordinarily reside at a place of residence, as assured, far from the place of residence of the prosecutrix and her immediate family; and the complete address of such place shall be furnished to the Jail Superintendent at the time of release; XXXXXXXXXXXXX 13. The High Court in its judgment relies on following:- (a) Applicants medical condition, which is affirmed by medical status report showing that applicant is suffering from disease, i.e., UTI with Diabetes mellitus with HTN with Bamboo spine with seronegative Spondylorthropathy; (b) Proper treatment is not available in K.G.M.U., Lucknow; (c) Doctors have advised proper treatment from multiple super specialities, at a tertiary care super speciality hospital; and (d) Threat to the applicants health in the prevailing times of COVID-19 pandemic is real and imminent. 14. The medical condition of the respondent, the treatment given and various reports including the report of medical board were on the record. The S.G.P.G.I.M.S. is a super-speciality hospital where the respondent has been referred for specified purposes and report of S.G.P.G.I.M.S. has also been brought on the record as Annexure P-10 alongwith the letter dated 10.06.2020 addressed to Chief Medical Superintendant, S.G.P.G.I.M.S., Lucknow. The medical report of the respondent dated 10.06.2020 in final evaluation states:- Final Evaluation Glycemia : better controlled Hypertension : well controlled Pulmonary consult: Completed, advised as per notes above Urology work-up on- going. 15. The above report of the S.G.P.G.I.M.S., i.e., the super-speciality hospital, which was on the record as well as report of the medical board dated 10.06.2020, which was brought in the notice of the High Court have neither been considered nor referred to by the High Court in the impugned order. When the respondent was being given treatment in the super-speciality hospital, i.e., S.G.P.G.I.M.S. as recommended by K.G.M.U., we fail to see as to what were the shortcomings in the medical treatment offered to respondent, which could have been the basis for grant of interim bail on medical ground. Further, as per condition (ii) mentioned in paragraph 27, the High Court contemplated that respondent shall ordinarily reside at a place of residence, as assured, far from the place of residence of the prosecutrix and her immediate family, thus, the contemplation was that respondent shall reside at his residence. There was no satisfaction recorded by the High Court that treatment offered to respondent was not adequate and he requires any further treatment by any particular medical institute for which it is necessary to release the respondent on interim bail on medical grounds. 16. Dr. Dhawan submits that every person, who is accused of an offence, even if the offence is a serious offence, requires a humane treatment by the prison authorities. There can be no two views with regard to above. Humane treatment to all including an accused is requirement of law. Furthermore, a prisoner, who is suffering from an ailment, has to be given due treatment and care while in prison. 17. Learned counsel for both the parties have referred to Clinical Summary dated 09.09.2020 as well as the letter dated 05.10.2020 of K.G.M.U. referring the respondent to S.G.P.G.I.M.S. for NCV testing. 18. Even as on date, due medical care is being taken of the respondent, which is apparent from the additional documents filed as Annexure A-2 and Annexure A-3 alongwith the application dated 10.10.2020. The High Court, without considering the entire materials on record, has passed the impugned order dated 03.09.2020, which is unsustainable.
### Response:
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### Explanation:
8. In the present appeal, our consideration is confined only to the interim bail, which has been granted to the respondent by order dated 03.09.2020. The Bail Application No. 5743 of 2019 being still pending in the High Court, our considerations and observations are only with respect to order granting interim bail and shall have no bearing on the merits of the bail application, which is pending consideration before the High Court.9. From the facts of the case, as noted above, it is clear that on 03.05.2019, the respondent was admitted in K.G.M.U. and after more than seven months discharged on 17.01.2020.14. The medical condition of the respondent, the treatment given and various reports including the report of medical board were on the record. The S.G.P.G.I.M.S. is a super-speciality hospital where the respondent has been referred for specified purposes and report of S.G.P.G.I.M.S. has also been brought on the record as Annexure P-10 alongwith the letter dated 10.06.2020 addressed to Chief Medical Superintendant, S.G.P.G.I.M.S., Lucknow. The medical report of the respondent dated 10.06.2020 in final evaluation states:-Glycemia : better controlledHypertension : well controlledPulmonary consult: Completed, advised as per notes aboveUrology work-up on- going.15. The above report of the S.G.P.G.I.M.S., i.e., the super-speciality hospital, which was on the record as well as report of the medical board dated 10.06.2020, which was brought in the notice of the High Court have neither been considered nor referred to by the High Court in the impugned order. When the respondent was being given treatment in the super-speciality hospital, i.e., S.G.P.G.I.M.S. as recommended by K.G.M.U., we fail to see as to what were the shortcomings in the medical treatment offered to respondent, which could have been the basis for grant of interim bail on medical ground. Further, as per condition (ii) mentioned in paragraph 27, the High Court contemplated that respondent shall ordinarily reside at a place of residence, as assured, far from the place of residence of the prosecutrix and her immediate family, thus, the contemplation was that respondent shall reside at his residence. There was no satisfaction recorded by the High Court that treatment offered to respondent was not adequate and he requires any further treatment by any particular medical institute for which it is necessary to release the respondent on interim bail on medical grounds.18. Even as on date, due medical care is being taken of the respondent, which is apparent from the additional documents filed as Annexure A-2 and Annexure A-3 alongwith the application dated 10.10.2020. The High Court, without considering the entire materials on record, has passed the impugned order dated 03.09.2020, which is unsustainable.
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