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KIRAN PAL SINGH Vs. THE STATE OF UTTAR PRADESH | High Court. It was contended that during the pendency of the 1st notice, the 2nd notice could not have been issued. There was no assertion that the meeting was convened pursuant to the 1st notice in the manner in which the statute provides for the same. The words not carried out as aforesaid are of immense significance. The meeting has to be convened as per the provisions of the said Section. The second part relates to want of the quorum. Though the quorum has not been defined under the Act, yet in the context, it would mean the quorum that requires the number of members to be present for the purpose of voting. For example, if the notice of intention is given to the Collector by more than half of the total members in Kshettra of 40 members but on the date of the meeting, there are only 10 members, indubitably there is a lack of quorum. Similarly, when the quorum is there and voting takes place, but eventually the vote of no confidence fails then the motion is not carried out as per the provisions contained in Section 15. To understand the concept of quorum, we may refer with profit to the authority in The Punjab University, Chandigarh v. Vijay Singh Lamba and Ors. wherein while discussing about quorum, the Court had held: 7. ...Quorum denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful. ... 17. In Corpus Juris Secundum, Volume 74, the word quorum has been defined as follows: The word quorum, now in common use, is from the Latin and has come to signify such a number of officers or members of any body, as is competent by law or constitution to transact business;... Quorum of a body is an absolute majority of it unless the authority by which the body was created fixes it at a different number. 18. In Blacks Law Dictionary (Second Edition), the word quorum is defined as under: When a committee, board of directors. meeting of shareholders, legislative or other body of persons cannot act unless a certain number at least of them are present, that number is called a quorum. Sweet. In the absence of any law or Rule fixing the quorum, it consists of a majority of those entitled to act. See Ex parte Willcocks, 7 Cow. (N.Y.) 409 : 17 Am. Dec. 525; State v. Wilkesville Tp. 20 Ohio St. 293; Heiskell v. Baltimore 65 Md. 125 : 4 Atl. 136 : 57 Am. Rep. 308; Snider v. Rinehart 18 Colo. 18 : 31 Pac. 716. 19. In this context, reference to Sub-section (6) of Section 15 is fruitful. It reads thus: (6) As soon as the meeting convened under this Section commences, the Presiding Officer shall read to the Kshettra Panchayat the motion for the consideration of which the meeting has been convened and declare it to be open for debate. It is quite clear that only when the number of persons are present and the meeting takes place, the debate Under Sub-section (6) comes into play. Thus, in the absence of quorum, the said provision will not come into play. 20. In the case at hand, there is no allegation that the meeting was convened to consider the previous notice dated 9th October, 2017, as provided in Section 15 and the motion was not challenged on any other ground or the lack of quorum. What is singularly contended is that once a notice is given Under Section 15(2), another notice of no confidence shall not be received until after expiration of one year. The said submission is without any substance inasmuch as the prohibition Under Section 15(12) would only come into play when there is meeting and the motion is not carried out as per the provisions of Section 15 or meeting could not be held for want of quorum. As the facts of the instant case would reveal that no meeting was convened to consider the previous notice dated 9th October, 2017, as per the provisions of the Act. Mere receipt of a notice by the Collector will not allow the prohibition Under Section 15(12) to come into play. That is not the purpose of the provision. That being the position, the ground urged by the learned Counsel for the Appellant that Sub-Section 15(12) would come into play is sans substratum. Neither of the conditions precedent is satisfied to attract the prohibition engrafted Under Section 15(12) of the Act. 21. As we have stated earlier, the legislature being empowered by the Constitution has legislated to provide for the establishment of Kshettra Panchayats and Zila Panchayats in the Districts of Uttar Pradesh to undertake certain Governmental functions at Kshettra and District levels respectively in furtherance of the principles of democratic decentralisation of Governmental functions. It intends to empower the Panchayats and that is why, Section 9 clearly provides that the term of the office of Pramukh is for five years from the date appointed for its first meeting. That brings stability to the administration of the Gram Panchayat. Simultaneously, it also provides that the democracy at the rural level must cherish the values of democracy and, therefore, a Pramukh can be removed when a vote of no confidence is passed against him. Once the no confidence motion fails, it cannot be brought again for one year. It is worthy to note here that Sub-section (13) of Section 15 provides that no notice of a motion Under Section 15 shall be received within two years of the assumption of office by a Pramukh. This is in consonance with the principle of stability of rural governance. There are provisions for removal in case of misconduct and certain other situations with which we are not concerned. We have referred to this aspect to highlight how the legislature has visualized the democracy at the grass root level. | 0[ds]13. Sub-section (12) of Section 15 deals with the situation when a motion is not carried as contemplated by the aforesaid sub-sections of Section 15.14. The aforesaid provision is absolutely clear and unambiguous. The conditions precedent for stipulation of the period of one year after the expiration from the date of such meeting are dependent on three situations, namely, (i) if the motion is not carried out as contemplated Under Sub-section (11), (ii) if the meeting would not be held for want of the quorum and, (iii) the notice of no confidence motion should be in respect of the same Pramukh.It was contended that during the pendency of the 1st notice, the 2nd notice could not have been issued. There was no assertion that the meeting was convened pursuant to the 1st notice in the manner in which the statute provides for the same. The words not carried out as aforesaid are of immense significance. The meeting has to be convened as per the provisions of the said Section. The second part relates to want of the quorum. Though the quorum has not been defined under the Act, yet in the context, it would mean the quorum that requires the number of members to be present for the purpose of voting. For example, if the notice of intention is given to the Collector by more than half of the total members in Kshettra of 40 members but on the date of the meeting, there are only 10 members, indubitably there is a lack of quorum. Similarly, when the quorum is there and voting takes place, but eventually the vote of no confidence fails then the motion is not carried out as per the provisions contained in Section 15.It is quite clear that only when the number of persons are present and the meeting takes place, the debate Under Sub-section (6) comes into play. Thus, in the absence of quorum, the said provision will not come into play.To understand the concept of quorum, we may refer with profit to the authority in The Punjab University, Chandigarh v. Vijay Singh Lamba and Ors.wherein while discussing about quorum, the Court had held:7. ...Quorum denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful. ...19. In this context, reference to Sub-section (6) of Section 15 is fruitfulIt is quite clear that only when the number of persons are present and the meeting takes place, the debate Under Sub-section (6) comes into play. Thus, in the absence of quorum, the said provision will not come into play.20. In the case at hand, there is no allegation that the meeting was convened to consider the previous notice dated 9th October, 2017, as provided in Section 15 and the motion was not challenged on any other ground or the lack of quorum. What is singularly contended is that once a notice is given Under Section 15(2), another notice of no confidence shall not be received until after expiration of one year. The said submission is without any substance inasmuch as the prohibition Under Section 15(12) would only come into play when there is meeting and the motion is not carried out as per the provisions of Section 15 or meeting could not be held for want of quorum. As the facts of the instant case would reveal that no meeting was convened to consider the previous notice dated 9th October, 2017, as per the provisions of the Act. Mere receipt of a notice by the Collector will not allow the prohibition Under Section 15(12) to come into play. That is not the purpose of the provision. That being the position, the ground urged by the learned Counsel for the Appellant that Sub-Section 15(12) would come into play is sans substratum. Neither of the conditions precedent is satisfied to attract the prohibition engrafted Under Section 15(12) of the Act.21. As we have stated earlier, the legislature being empowered by the Constitution has legislated to provide for the establishment of Kshettra Panchayats and Zila Panchayats in the Districts of Uttar Pradesh to undertake certain Governmental functions at Kshettra and District levels respectively in furtherance of the principles of democratic decentralisation of Governmental functions. It intends to empower the Panchayats and that is why, Section 9 clearly provides that the term of the office of Pramukh is for five years from the date appointed for its first meeting. That brings stability to the administration of the Gram Panchayat. Simultaneously, it also provides that the democracy at the rural level must cherish the values of democracy and, therefore, a Pramukh can be removed when a vote of no confidence is passed against him. Once the no confidence motion fails, it cannot be brought again for one year. It is worthy to note here that Sub-section (13) of Section 15 provides that no notice of a motion Under Section 15 shall be received within two years of the assumption of office by a Pramukh. This is in consonance with the principle of stability of rural governance. There are provisions for removal in case of misconduct and certain other situations with which we are not concerned. We have referred to this aspect to highlight how the legislature has visualized the democracy at the grass root level. | 0 | 4,120 | 1,004 | ### Instruction:
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High Court. It was contended that during the pendency of the 1st notice, the 2nd notice could not have been issued. There was no assertion that the meeting was convened pursuant to the 1st notice in the manner in which the statute provides for the same. The words not carried out as aforesaid are of immense significance. The meeting has to be convened as per the provisions of the said Section. The second part relates to want of the quorum. Though the quorum has not been defined under the Act, yet in the context, it would mean the quorum that requires the number of members to be present for the purpose of voting. For example, if the notice of intention is given to the Collector by more than half of the total members in Kshettra of 40 members but on the date of the meeting, there are only 10 members, indubitably there is a lack of quorum. Similarly, when the quorum is there and voting takes place, but eventually the vote of no confidence fails then the motion is not carried out as per the provisions contained in Section 15. To understand the concept of quorum, we may refer with profit to the authority in The Punjab University, Chandigarh v. Vijay Singh Lamba and Ors. wherein while discussing about quorum, the Court had held: 7. ...Quorum denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful. ... 17. In Corpus Juris Secundum, Volume 74, the word quorum has been defined as follows: The word quorum, now in common use, is from the Latin and has come to signify such a number of officers or members of any body, as is competent by law or constitution to transact business;... Quorum of a body is an absolute majority of it unless the authority by which the body was created fixes it at a different number. 18. In Blacks Law Dictionary (Second Edition), the word quorum is defined as under: When a committee, board of directors. meeting of shareholders, legislative or other body of persons cannot act unless a certain number at least of them are present, that number is called a quorum. Sweet. In the absence of any law or Rule fixing the quorum, it consists of a majority of those entitled to act. See Ex parte Willcocks, 7 Cow. (N.Y.) 409 : 17 Am. Dec. 525; State v. Wilkesville Tp. 20 Ohio St. 293; Heiskell v. Baltimore 65 Md. 125 : 4 Atl. 136 : 57 Am. Rep. 308; Snider v. Rinehart 18 Colo. 18 : 31 Pac. 716. 19. In this context, reference to Sub-section (6) of Section 15 is fruitful. It reads thus: (6) As soon as the meeting convened under this Section commences, the Presiding Officer shall read to the Kshettra Panchayat the motion for the consideration of which the meeting has been convened and declare it to be open for debate. It is quite clear that only when the number of persons are present and the meeting takes place, the debate Under Sub-section (6) comes into play. Thus, in the absence of quorum, the said provision will not come into play. 20. In the case at hand, there is no allegation that the meeting was convened to consider the previous notice dated 9th October, 2017, as provided in Section 15 and the motion was not challenged on any other ground or the lack of quorum. What is singularly contended is that once a notice is given Under Section 15(2), another notice of no confidence shall not be received until after expiration of one year. The said submission is without any substance inasmuch as the prohibition Under Section 15(12) would only come into play when there is meeting and the motion is not carried out as per the provisions of Section 15 or meeting could not be held for want of quorum. As the facts of the instant case would reveal that no meeting was convened to consider the previous notice dated 9th October, 2017, as per the provisions of the Act. Mere receipt of a notice by the Collector will not allow the prohibition Under Section 15(12) to come into play. That is not the purpose of the provision. That being the position, the ground urged by the learned Counsel for the Appellant that Sub-Section 15(12) would come into play is sans substratum. Neither of the conditions precedent is satisfied to attract the prohibition engrafted Under Section 15(12) of the Act. 21. As we have stated earlier, the legislature being empowered by the Constitution has legislated to provide for the establishment of Kshettra Panchayats and Zila Panchayats in the Districts of Uttar Pradesh to undertake certain Governmental functions at Kshettra and District levels respectively in furtherance of the principles of democratic decentralisation of Governmental functions. It intends to empower the Panchayats and that is why, Section 9 clearly provides that the term of the office of Pramukh is for five years from the date appointed for its first meeting. That brings stability to the administration of the Gram Panchayat. Simultaneously, it also provides that the democracy at the rural level must cherish the values of democracy and, therefore, a Pramukh can be removed when a vote of no confidence is passed against him. Once the no confidence motion fails, it cannot be brought again for one year. It is worthy to note here that Sub-section (13) of Section 15 provides that no notice of a motion Under Section 15 shall be received within two years of the assumption of office by a Pramukh. This is in consonance with the principle of stability of rural governance. There are provisions for removal in case of misconduct and certain other situations with which we are not concerned. We have referred to this aspect to highlight how the legislature has visualized the democracy at the grass root level.
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13. Sub-section (12) of Section 15 deals with the situation when a motion is not carried as contemplated by the aforesaid sub-sections of Section 15.14. The aforesaid provision is absolutely clear and unambiguous. The conditions precedent for stipulation of the period of one year after the expiration from the date of such meeting are dependent on three situations, namely, (i) if the motion is not carried out as contemplated Under Sub-section (11), (ii) if the meeting would not be held for want of the quorum and, (iii) the notice of no confidence motion should be in respect of the same Pramukh.It was contended that during the pendency of the 1st notice, the 2nd notice could not have been issued. There was no assertion that the meeting was convened pursuant to the 1st notice in the manner in which the statute provides for the same. The words not carried out as aforesaid are of immense significance. The meeting has to be convened as per the provisions of the said Section. The second part relates to want of the quorum. Though the quorum has not been defined under the Act, yet in the context, it would mean the quorum that requires the number of members to be present for the purpose of voting. For example, if the notice of intention is given to the Collector by more than half of the total members in Kshettra of 40 members but on the date of the meeting, there are only 10 members, indubitably there is a lack of quorum. Similarly, when the quorum is there and voting takes place, but eventually the vote of no confidence fails then the motion is not carried out as per the provisions contained in Section 15.It is quite clear that only when the number of persons are present and the meeting takes place, the debate Under Sub-section (6) comes into play. Thus, in the absence of quorum, the said provision will not come into play.To understand the concept of quorum, we may refer with profit to the authority in The Punjab University, Chandigarh v. Vijay Singh Lamba and Ors.wherein while discussing about quorum, the Court had held:7. ...Quorum denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful. ...19. In this context, reference to Sub-section (6) of Section 15 is fruitfulIt is quite clear that only when the number of persons are present and the meeting takes place, the debate Under Sub-section (6) comes into play. Thus, in the absence of quorum, the said provision will not come into play.20. In the case at hand, there is no allegation that the meeting was convened to consider the previous notice dated 9th October, 2017, as provided in Section 15 and the motion was not challenged on any other ground or the lack of quorum. What is singularly contended is that once a notice is given Under Section 15(2), another notice of no confidence shall not be received until after expiration of one year. The said submission is without any substance inasmuch as the prohibition Under Section 15(12) would only come into play when there is meeting and the motion is not carried out as per the provisions of Section 15 or meeting could not be held for want of quorum. As the facts of the instant case would reveal that no meeting was convened to consider the previous notice dated 9th October, 2017, as per the provisions of the Act. Mere receipt of a notice by the Collector will not allow the prohibition Under Section 15(12) to come into play. That is not the purpose of the provision. That being the position, the ground urged by the learned Counsel for the Appellant that Sub-Section 15(12) would come into play is sans substratum. Neither of the conditions precedent is satisfied to attract the prohibition engrafted Under Section 15(12) of the Act.21. As we have stated earlier, the legislature being empowered by the Constitution has legislated to provide for the establishment of Kshettra Panchayats and Zila Panchayats in the Districts of Uttar Pradesh to undertake certain Governmental functions at Kshettra and District levels respectively in furtherance of the principles of democratic decentralisation of Governmental functions. It intends to empower the Panchayats and that is why, Section 9 clearly provides that the term of the office of Pramukh is for five years from the date appointed for its first meeting. That brings stability to the administration of the Gram Panchayat. Simultaneously, it also provides that the democracy at the rural level must cherish the values of democracy and, therefore, a Pramukh can be removed when a vote of no confidence is passed against him. Once the no confidence motion fails, it cannot be brought again for one year. It is worthy to note here that Sub-section (13) of Section 15 provides that no notice of a motion Under Section 15 shall be received within two years of the assumption of office by a Pramukh. This is in consonance with the principle of stability of rural governance. There are provisions for removal in case of misconduct and certain other situations with which we are not concerned. We have referred to this aspect to highlight how the legislature has visualized the democracy at the grass root level.
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Gulshera Khanam Vs. Aftab Ahmad | first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.”34) Coming now to the facts of this case, keeping in view the principle of law laid down in the aforementioned case and on perusal of the order of the Prescribed Authority/Civil Judge and the first appellate court, we find that both the courts properly appreciated the facts and evidence adduced by the parties and on that basis recorded all necessary findings (detailed above) in favour of the appellant and granted decree of eviction against the respondent. This the Prescribed Authority/Civil Judge and the first appellate court could do in their respective jurisdiction and, in our opinion, both the courts rightly did it in the facts of this case.35) Likewise, when we peruse the impugned judgment, we find, as rightly urged by the learned counsel for the appellant, the High Court did not keep in mind the aforesaid principle of law laid down by the Constitution Bench in Hindustan Petroleum Corpn. Ltd. (supra) so also the principle laid down by this Court in relation to exercise of jurisdiction under Article 227 of Constitution of India in the case of Surya Dev Rai vs. Ram Chander Rai & Ors., (2003) 6 SCC 675 while deciding the writ petition and proceeded to decide like the first appellate court. The High Court as is clear from the judgment probed all factual aspects of the case, appreciated evidence and then reversed the factual findings of the appellate court and the Prescribed Authority. This, in our view, was a jurisdictional error, which the High Court committed while deciding the writ petition. In other words, the High Court, in our view, should have confined its inquiry to examine as to whether any jurisdictional error was committed by the first appellate court while deciding the first appeal. It was, however, not done.36) In our considered opinion, the question in relation to the bona fide need of the appellants daughter to expand the activities of running the clinic was rightly held by the Prescribed Authority and the first appellate Court in appellant’s favour by holding the appellant’s need to be bona fide and genuine. We find no ground on which the High Court could have upset the concurrent finding on this question in its writ jurisdiction under Article 227, which is more or less akin to revisional jurisdiction of the High Court. The High Court also failed to hold that finding of the two courts were so perverse to the extent that any judicial person could ever reach to such conclusion or that the findings were against any provision of law or were contrary to evidence adduced etc.37) The High Court, in our view, should have seen, as was rightly held by the two courts below, that the appellants daughter had been running her medical clinic in shop No. 7 for quite some time. This fact was not in dispute. Though a feeble attempt was made by the respondent contending that after appellants daughters marriage, she has started living in Moradabad and, therefore, her need to run the clinic and expand its activity is not bona fide but this plea did not find favour with Prescribed Authority and the first appellate Court and, in our view, this being a pure finding of fact, was binding on the High Court in its writ jurisdiction.38) In our considered opinion, the appellants need for additional space for the expansion of clinic activities for her daughter cannot be said to be unjust or unreasonable in any manner. It is for the reasons that, firstly, the suit shop No.6 is adjacent to Shop No. 7 and secondly, the need for expansion of clinic could be accomplished effectively only with the use of two shops, which are adjacent to each other. It is a well settled principle laid down by this Court in rent matters that the landlord is the sole judge to decide as to how much space is needed for him/her to start or expand any of his/her activity. This principle was overlooked by the High Court while deciding the issue of need. That apart, the High Court should have also seen that the two courts below have recorded a finding that the respondent was having his own shops in the same area where he could shift his existing business activity without suffering any comparative hardship.39) In the light of aforementioned factual findings of the courts below, in our view, there was no justification on the part of the High Court to have probed into any factual issues again in depth by undertaking appreciation of evidence like a first appellate court and reversed the findings.40) In view of foregoing discussion, we are unable to agree with the reasoning and the conclusion arrived at by the High Court. The impugned judgment is, therefore, not legally sustainable and is accordingly set aside. As a result, the order dated 04.03.1999 of Prescribed Authority in U.P.U.B. No. 13/1994 and order dated 24.08.2011 of the Additional District Judge, Aligarh in U.P.U.B. Appeal No. 7/99 are restored. The respondent is, however, granted three months’ time to vacate the suit shop from the date of this order subject to furnishing of the usual undertaking in this Court to vacate the suit premises within 3 months and further, the respondent would in addition to the directions given by the Prescribed Authority also deposit all arrears of rent till date at the same rate at which he had been paying monthly rent to the appellant (if there are arrears) and would also deposit three months’ rent in advance by way of damages for use and occupation as permitted by this Court. Let the undertaking, arrears of rent, damages for three months and compliance of direction to deposit damages by Prescribed Authority and the cost awarded by this Court be deposited within one month from the date of this order. | 1[ds]30) Dr. Naheed Parveen being the daughter, accordingly, received her share and became co-owner of the building along with other co-sharers. Being a co-owner, she got a legal right of residence in the building as provided under Section 3(g) of the Act. In this way, she fulfilled the definition ofunder Section 3 (g) of theare unable to agree with the reasoning of the High Court and while reversing the finding answer the second question in appellants favour and accordingly hold that the appellant was entitled to claim eviction of the respondent from the building in question for the need of her daughter Dr. Naheed Parveen for running her clinic as the daughter was having a legal right of residence in the building inIn our considered opinion, the question in relation to the bona fide need of the appellants daughter to expand the activities of running the clinic was rightly held by the Prescribed Authority and the first appellate Court infavour by holding theneed to be bona fide and genuine. We find no ground on which the High Court could have upset the concurrent finding on this question in its writ jurisdiction under Article 227, which is more or less akin to revisional jurisdiction of the High Court. The High Court also failed to hold that finding of the two courts were so perverse to the extent that any judicial person could ever reach to such conclusion or that the findings were against any provision of law or were contrary to evidence adduced etc.37) The High Court, in our view, should have seen, as was rightly held by the two courts below, that the appellants daughter had been running her medical clinic in shop No. 7 for quite some time. This fact was not in dispute. Though a feeble attempt was made by the respondent contending that after appellants daughters marriage, she has started living in Moradabad and, therefore, her need to run the clinic and expand its activity is not bona fide but this plea did not find favour with Prescribed Authority and the first appellate Court and, in our view, this being a pure finding of fact, was binding on the High Court in its writ jurisdiction.38) In our considered opinion, the appellants need for additional space for the expansion of clinic activities for her daughter cannot be said to be unjust or unreasonable in any manner. It is for the reasons that, firstly, the suit shop No.6 is adjacent to Shop No. 7 and secondly, the need for expansion of clinic could be accomplished effectively only with the use of two shops, which are adjacent to each other. It is a well settled principle laid down by this Court in rent matters that the landlord is the sole judge to decide as to how much space is needed for him/her to start or expand any of his/her activity. This principle was overlooked by the High Court while deciding the issue of need. That apart, the High Court should have also seen that the two courts below have recorded a finding that the respondent was having his own shops in the same area where he could shift his existing business activity without suffering any comparativeour view, there was no justification on the part of the High Court to have probed into any factual issues again in depth by undertaking appreciation of evidence like a first appellate court and reversed the findings.40) In view of foregoing discussion, we are unable to agree with the reasoning and the conclusion arrived at by the High Court. The impugned judgment is, therefore, not legally sustainable and is accordingly set aside. As a result, the order dated 04.03.1999 of Prescribed Authority in U.P.U.B. No. 13/1994 and order dated 24.08.2011 of the Additional District Judge, Aligarh in U.P.U.B. Appeal No. 7/99 are restored. The respondent is, however, granted threetime to vacate the suit shop from the date of this order subject to furnishing of the usual undertaking in this Court to vacate the suit premises within 3 months and further, the respondent would in addition to the directions given by the Prescribed Authority also deposit all arrears of rent till date at the same rate at which he had been paying monthly rent to the appellant (if there are arrears) and would also deposit threerent in advance by way of damages for use and occupation as permitted by this Court. Let the undertaking, arrears of rent, damages for three months and compliance of direction to deposit damages by Prescribed Authority and the cost awarded by this Court be deposited within one month from the date of this | 1 | 4,201 | 841 | ### Instruction:
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first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.”34) Coming now to the facts of this case, keeping in view the principle of law laid down in the aforementioned case and on perusal of the order of the Prescribed Authority/Civil Judge and the first appellate court, we find that both the courts properly appreciated the facts and evidence adduced by the parties and on that basis recorded all necessary findings (detailed above) in favour of the appellant and granted decree of eviction against the respondent. This the Prescribed Authority/Civil Judge and the first appellate court could do in their respective jurisdiction and, in our opinion, both the courts rightly did it in the facts of this case.35) Likewise, when we peruse the impugned judgment, we find, as rightly urged by the learned counsel for the appellant, the High Court did not keep in mind the aforesaid principle of law laid down by the Constitution Bench in Hindustan Petroleum Corpn. Ltd. (supra) so also the principle laid down by this Court in relation to exercise of jurisdiction under Article 227 of Constitution of India in the case of Surya Dev Rai vs. Ram Chander Rai & Ors., (2003) 6 SCC 675 while deciding the writ petition and proceeded to decide like the first appellate court. The High Court as is clear from the judgment probed all factual aspects of the case, appreciated evidence and then reversed the factual findings of the appellate court and the Prescribed Authority. This, in our view, was a jurisdictional error, which the High Court committed while deciding the writ petition. In other words, the High Court, in our view, should have confined its inquiry to examine as to whether any jurisdictional error was committed by the first appellate court while deciding the first appeal. It was, however, not done.36) In our considered opinion, the question in relation to the bona fide need of the appellants daughter to expand the activities of running the clinic was rightly held by the Prescribed Authority and the first appellate Court in appellant’s favour by holding the appellant’s need to be bona fide and genuine. We find no ground on which the High Court could have upset the concurrent finding on this question in its writ jurisdiction under Article 227, which is more or less akin to revisional jurisdiction of the High Court. The High Court also failed to hold that finding of the two courts were so perverse to the extent that any judicial person could ever reach to such conclusion or that the findings were against any provision of law or were contrary to evidence adduced etc.37) The High Court, in our view, should have seen, as was rightly held by the two courts below, that the appellants daughter had been running her medical clinic in shop No. 7 for quite some time. This fact was not in dispute. Though a feeble attempt was made by the respondent contending that after appellants daughters marriage, she has started living in Moradabad and, therefore, her need to run the clinic and expand its activity is not bona fide but this plea did not find favour with Prescribed Authority and the first appellate Court and, in our view, this being a pure finding of fact, was binding on the High Court in its writ jurisdiction.38) In our considered opinion, the appellants need for additional space for the expansion of clinic activities for her daughter cannot be said to be unjust or unreasonable in any manner. It is for the reasons that, firstly, the suit shop No.6 is adjacent to Shop No. 7 and secondly, the need for expansion of clinic could be accomplished effectively only with the use of two shops, which are adjacent to each other. It is a well settled principle laid down by this Court in rent matters that the landlord is the sole judge to decide as to how much space is needed for him/her to start or expand any of his/her activity. This principle was overlooked by the High Court while deciding the issue of need. That apart, the High Court should have also seen that the two courts below have recorded a finding that the respondent was having his own shops in the same area where he could shift his existing business activity without suffering any comparative hardship.39) In the light of aforementioned factual findings of the courts below, in our view, there was no justification on the part of the High Court to have probed into any factual issues again in depth by undertaking appreciation of evidence like a first appellate court and reversed the findings.40) In view of foregoing discussion, we are unable to agree with the reasoning and the conclusion arrived at by the High Court. The impugned judgment is, therefore, not legally sustainable and is accordingly set aside. As a result, the order dated 04.03.1999 of Prescribed Authority in U.P.U.B. No. 13/1994 and order dated 24.08.2011 of the Additional District Judge, Aligarh in U.P.U.B. Appeal No. 7/99 are restored. The respondent is, however, granted three months’ time to vacate the suit shop from the date of this order subject to furnishing of the usual undertaking in this Court to vacate the suit premises within 3 months and further, the respondent would in addition to the directions given by the Prescribed Authority also deposit all arrears of rent till date at the same rate at which he had been paying monthly rent to the appellant (if there are arrears) and would also deposit three months’ rent in advance by way of damages for use and occupation as permitted by this Court. Let the undertaking, arrears of rent, damages for three months and compliance of direction to deposit damages by Prescribed Authority and the cost awarded by this Court be deposited within one month from the date of this order.
### Response:
1
### Explanation:
30) Dr. Naheed Parveen being the daughter, accordingly, received her share and became co-owner of the building along with other co-sharers. Being a co-owner, she got a legal right of residence in the building as provided under Section 3(g) of the Act. In this way, she fulfilled the definition ofunder Section 3 (g) of theare unable to agree with the reasoning of the High Court and while reversing the finding answer the second question in appellants favour and accordingly hold that the appellant was entitled to claim eviction of the respondent from the building in question for the need of her daughter Dr. Naheed Parveen for running her clinic as the daughter was having a legal right of residence in the building inIn our considered opinion, the question in relation to the bona fide need of the appellants daughter to expand the activities of running the clinic was rightly held by the Prescribed Authority and the first appellate Court infavour by holding theneed to be bona fide and genuine. We find no ground on which the High Court could have upset the concurrent finding on this question in its writ jurisdiction under Article 227, which is more or less akin to revisional jurisdiction of the High Court. The High Court also failed to hold that finding of the two courts were so perverse to the extent that any judicial person could ever reach to such conclusion or that the findings were against any provision of law or were contrary to evidence adduced etc.37) The High Court, in our view, should have seen, as was rightly held by the two courts below, that the appellants daughter had been running her medical clinic in shop No. 7 for quite some time. This fact was not in dispute. Though a feeble attempt was made by the respondent contending that after appellants daughters marriage, she has started living in Moradabad and, therefore, her need to run the clinic and expand its activity is not bona fide but this plea did not find favour with Prescribed Authority and the first appellate Court and, in our view, this being a pure finding of fact, was binding on the High Court in its writ jurisdiction.38) In our considered opinion, the appellants need for additional space for the expansion of clinic activities for her daughter cannot be said to be unjust or unreasonable in any manner. It is for the reasons that, firstly, the suit shop No.6 is adjacent to Shop No. 7 and secondly, the need for expansion of clinic could be accomplished effectively only with the use of two shops, which are adjacent to each other. It is a well settled principle laid down by this Court in rent matters that the landlord is the sole judge to decide as to how much space is needed for him/her to start or expand any of his/her activity. This principle was overlooked by the High Court while deciding the issue of need. That apart, the High Court should have also seen that the two courts below have recorded a finding that the respondent was having his own shops in the same area where he could shift his existing business activity without suffering any comparativeour view, there was no justification on the part of the High Court to have probed into any factual issues again in depth by undertaking appreciation of evidence like a first appellate court and reversed the findings.40) In view of foregoing discussion, we are unable to agree with the reasoning and the conclusion arrived at by the High Court. The impugned judgment is, therefore, not legally sustainable and is accordingly set aside. As a result, the order dated 04.03.1999 of Prescribed Authority in U.P.U.B. No. 13/1994 and order dated 24.08.2011 of the Additional District Judge, Aligarh in U.P.U.B. Appeal No. 7/99 are restored. The respondent is, however, granted threetime to vacate the suit shop from the date of this order subject to furnishing of the usual undertaking in this Court to vacate the suit premises within 3 months and further, the respondent would in addition to the directions given by the Prescribed Authority also deposit all arrears of rent till date at the same rate at which he had been paying monthly rent to the appellant (if there are arrears) and would also deposit threerent in advance by way of damages for use and occupation as permitted by this Court. Let the undertaking, arrears of rent, damages for three months and compliance of direction to deposit damages by Prescribed Authority and the cost awarded by this Court be deposited within one month from the date of this
|
Bilt Graphic Paper Products Vs. The State of Mah & Others | Pepsico Industries. There were also other contentions. There was an argument that there was a continuing liability to pay increased rate from the year 2001 itself, and it was not paid in spite of representations. There was also an argument that the enhancement as per the Circular dated 25th October, 2001 [by ten times] cannot be said to be a retrospective demand because it was not altered in spite of representations [para 31]. Finally, there are observations in paras 43 and 44. The relevant part of para 44 reads thus :-44. ............................................................................ ..........The stand of the appellant that the increased rate of water charges is being demanded from them on a retrospective basis is erroneous and fallacious and not proper because it is established from the record that the appellant had the knowledge about the aforesaid increase in 2001 itself when the Government issued the notification intimating such increase which fact is an admitted position.28. Issue about retrospective operation was also one of the issues in case of Zawar Sales Ltd. [Supra]. Water rates were increased from Rs.16.50 per cubic meters to Rs.51.10 per cubic meter. Water was used as a raw material and also for allied activities. Above two judgments were also referred in para 17 of this judgment. In case State Bank of India [Supra], SBI was getting water from BMC and there was increase in water rates.JUDGMENTS RELIED UPON BY PETITIONER IN WRIT PETITION NO. 4313 OF 2004 29. In all, there are seven citations. They are as follows :-[a] Commissioner of Income Tax 5 Mumbai Vs. Essar Teleholdings Ltd [ (2018) 3 SCC 253],[b] Commissioner of Income Tax (Central)-I, New Delhi Vs. Vatika Township Pvt. Ltd. [ (2015) 1 SCC 1],[c] Vice-Chancellor, M.D. University, Rohtak Vs. Jahan Singh [ (2007) 5 SCC 77],[d] Regional Transport Officer, Chittoor & others Vs. Associated Transport Madras (P) Ltd., & others [ (1980) 4 SCC 597],[e] Bakul Cashew Co. & others Vs. Sales Tax Officer, Quilon & another [ AIR 1987 SC 2239],[f] Govind Das & others Vs. The Income Tax Officer & another [ (1976) 1 SCC 906 ], and[g] The Income-tax Officer, Alleppey (in both the Appeals) Vs. 1. M. C. Ponnoose & others (in C.A. No. 942 of 1966) 2. Excel Productions, Alleppey & others (In C.A. No. 943 of 1966) [ AIR 1970 SC 385 ].On perusing them we find more or less similar principles have been laid down. In order not to burden the judgment, we are only reproducing the ratios laid down in the judgment. In case of Income Tax Officer, Aleppi [supra], Issue was about investing Tahsildar with powers of Tax Recovery Officer. The question was whether such powers can be invested from the date of notification or earlier thereto. It has been turned down. There cannot be any dispute about proposition that there cannot be retrospective operation of delegated legislation. On this basis we will look into the factual aspects.NOTIFICATION 30. The notification does not specifically mentions of any section of any law. On reading it, one can very well infer that water rates were changed and it also mentions the reason and it is due to world wide industrial slackness and on the basis of representations made by various industrialists.31. There is reference of notifications dated 12/9/2001 and dated 24/10/2001 in it. It also mentions the considerations for increasing the charges 3 times. The factors were recommendations of Finance Commission, Irrigation Commission National Water Supply Authority. It also mentions the difference between the expenses incurred and income derived from present water charges.32. Now, it will be material to see the water rates mentioned in these two earlier notifications. The petitioners have not filed them on record. Respondents through referred them in their pleadings, have not filed them in time. When they attempted to file them at the time of arguments, it was strongly opposed on behalf of the petitioners. Hence even we have not granted permission.33. So we have no alternative to decide the factual aspects on the basis of pleadings and available record. The respondents no. 1 and 2 have in their Return have given the calculation thereby suggesting how rates were not made applicable retrospectively. In fact they want : to suggest that even though they have been made retrospectively applicable, they are not to the detriment of the petitioners but to their advantage. We have also read the rejoinder to the reply (filed by BILT PAPER PRODUCTS). They have simply denied the allegations. They have simply laid emphasis on the concessional rates granted as per the agreement and non application of the provisions of section 70 of M.L.R. Code.34. It is very well true that there are four periods mentioned in the schedule II attached to the impugned notification. It relates to industrial use other than cold drink. The periods start from 1/7/2000, 1/7/2001, 1/7/2002 and 1/7/2003. so the arguments on behalf of the petitioners are certainly attractive. But what we feel is that the petitioners ought to have filed earlier two notifications. They could not be taken on record due to attempt made belatedly by the respondents to file it on record. So we have no alternative to hold that the changes made as per the impugned notifications even though made applicable retrospectively, they are to the benefit of the petitioners. We draw support from the wordings of impugned notification. Industrial slackness was considered by the government and that too on the representations of the industrialists. 35. So we find that revised rates were made applicable retrospectively. We do think that all the petitioners will be having any objection if the revised rates will be given effect retrospectively. There is also no merit in the argument about enormous increase in water rates and changing the measure of computing water consumption. Earlier, it was per cubic feet. It is also changed to cubic liters. Ultimately, it is the policy decision. It has been done on the recommendations of various Authorities. It can not be interfered by the Court. | 0[ds]We agree with the submission made on behalf of Govt., and VIDC that 1976 Act is not applicable because it is not the canal water, but it is the Wardha river water.There is a broader meaning of canal given in 1976 Act than that was given in 1931 Act.However, there are two conditions prior to including river under canal.Either Govt. must notify river under the provisions of Section 11 of 1976 Act or such river water must have been used for the purpose of canal. Company does not claim fulfillment of either of the conditions at least till filing of this petition. For these reasons, we have no hesitation but to hold that 1976 Act is not applicable.We are satisfied that the provisions of 1966 Maharashtra Land Revenue Code are very much applicable.There is much stress on the provisions of Section 70 of the Code.Learned Adv. Shri Naik contends that second condition of Section 70 of the Code is not satisfied. It is disputed on behalf of the Govt. Section 70 of the Code empowers the Collector [when authorized by the Govt. ] to fix water rates. It can be done only when two conditions are fulfilled. One is right over the water must vest in the Govt. There is no dispute that this condition is fulfilled in case before us.On one hand, 1949 Act protects the rights acquired earlier in such water and on the other hand empowers the Govt., to make rules [including fixing of water rates].No such rules were placed before us.Immediately before 1966, 1949 Act was made applicable to State of Maharashtra with effect from 1st June, 1962 [notification dated 3rd May, 1962].. We feel that direction given as per letter dated 28th September, 1965 by Irrigation Department to the Company is a proper exercise of the power under 1949 Act. Water rate @ Rs.4.50 per 10,000 cubic feet was fixed. This direction is more appropriate than the directions dated 27th September, 1963 and 8th January, 1964. Because first does not pertain to water of Wardha river and second is superseded by 28th September, 1965 directions. So also, second was issued by Industries Department and not by Irrigation. So, admittedly, there was a law prescribing framing of rules [including fixing of rates]. But rules were not placed before us. Natural corollary will be there was no codified law in existence under which water rates are leviable prior to 1966. Hence, we conclude that second condition of Section 70 of the Maharashtra Land Revenue Code is also satisfied. So, Govt. was justified in fixing rates by issuing circular. Section 70 empowers the Govt., to do the same. Even otherwise, as per 1947 Agreement, there was a permission to manufacture nine thousand tons of paper. It must have increased due to passage of time. So, on one hand, Company cannot justify in claiming water charges at concessional rates, whereas, on the the hand, the manufacturing capacity must have been increased.. For above discussion, we conclude that there is no substance in the challenge to revise water rates. It needs to be rejected.The notification does not specifically mentions of any section of any law.On reading it, one can very well infer that water rates werechanged and it also mentions the reason and it is due to world wide industrial slackness and on the basis of representations made by various industrialists.. There is reference of notifications dated 12/9/2001 and dated 24/10/2001 in it. It also mentions the considerations for increasing the charges 3 times. The factors were recommendations of Finance Commission, Irrigation Commission National Water Supply Authority. It also mentions the difference between the expenses incurred and income derived from present water. Now, it will be material to see the water rates mentioned in these two earlier notifications. The petitioners have not filed them on record. Respondents through referred them in their pleadings, have not filed them in time. When they attempted to file them at the time of arguments, it was strongly opposed on behalf of the petitioners. Hence even we have not granted. So we have no alternative to decide the factual aspects on the basis of pleadings and available record. The respondents no. 1 and 2 have in their Return have given the calculation thereby suggesting how rates were not made applicable retrospectively. In fact they want : to suggest that even though they have been made retrospectively applicable, they are not to the detriment of the petitioners but to their advantage. We have also read the rejoinder to the reply (filed by BILT PAPER PRODUCTS). They have simply denied the allegations. They have simply laid emphasis on the concessional rates granted as per the agreement and non application of the provisions of section 70 of M.L.R.. It is very well true that there are four periods mentioned in the schedule II attached to the impugned notification. It relates to industrial use other than cold drink. The periods start from 1/7/2000, 1/7/2001, 1/7/2002 and 1/7/2003. so the arguments on behalf of the petitioners are certainly attractive. But what we feel is that the petitioners ought to have filed earlier two notifications. They could not be taken on record due to attempt made belatedly by the respondents to file it on record. So we have no alternative to hold that the changes made as per the impugned notifications even though made applicable retrospectively, they are to the benefit of the petitioners. We draw support from the wordings of impugned notification. Industrial slackness was considered by the government and that too on the representations of the industrialists.. So we find that revised rates were made applicable retrospectively. We do think that all the petitioners will be having any objection if the revised rates will be given effect retrospectively. There is also no merit in the argument about enormous increase in water rates and changing the measure of computing water consumption. Earlier, it was per cubic feet. It is also changed to cubic liters. Ultimately, it is the policy decision. It has been done on the recommendations of various Authorities. It can not be interfered by the Court. | 0 | 4,472 | 1,132 | ### 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:
Pepsico Industries. There were also other contentions. There was an argument that there was a continuing liability to pay increased rate from the year 2001 itself, and it was not paid in spite of representations. There was also an argument that the enhancement as per the Circular dated 25th October, 2001 [by ten times] cannot be said to be a retrospective demand because it was not altered in spite of representations [para 31]. Finally, there are observations in paras 43 and 44. The relevant part of para 44 reads thus :-44. ............................................................................ ..........The stand of the appellant that the increased rate of water charges is being demanded from them on a retrospective basis is erroneous and fallacious and not proper because it is established from the record that the appellant had the knowledge about the aforesaid increase in 2001 itself when the Government issued the notification intimating such increase which fact is an admitted position.28. Issue about retrospective operation was also one of the issues in case of Zawar Sales Ltd. [Supra]. Water rates were increased from Rs.16.50 per cubic meters to Rs.51.10 per cubic meter. Water was used as a raw material and also for allied activities. Above two judgments were also referred in para 17 of this judgment. In case State Bank of India [Supra], SBI was getting water from BMC and there was increase in water rates.JUDGMENTS RELIED UPON BY PETITIONER IN WRIT PETITION NO. 4313 OF 2004 29. In all, there are seven citations. They are as follows :-[a] Commissioner of Income Tax 5 Mumbai Vs. Essar Teleholdings Ltd [ (2018) 3 SCC 253],[b] Commissioner of Income Tax (Central)-I, New Delhi Vs. Vatika Township Pvt. Ltd. [ (2015) 1 SCC 1],[c] Vice-Chancellor, M.D. University, Rohtak Vs. Jahan Singh [ (2007) 5 SCC 77],[d] Regional Transport Officer, Chittoor & others Vs. Associated Transport Madras (P) Ltd., & others [ (1980) 4 SCC 597],[e] Bakul Cashew Co. & others Vs. Sales Tax Officer, Quilon & another [ AIR 1987 SC 2239],[f] Govind Das & others Vs. The Income Tax Officer & another [ (1976) 1 SCC 906 ], and[g] The Income-tax Officer, Alleppey (in both the Appeals) Vs. 1. M. C. Ponnoose & others (in C.A. No. 942 of 1966) 2. Excel Productions, Alleppey & others (In C.A. No. 943 of 1966) [ AIR 1970 SC 385 ].On perusing them we find more or less similar principles have been laid down. In order not to burden the judgment, we are only reproducing the ratios laid down in the judgment. In case of Income Tax Officer, Aleppi [supra], Issue was about investing Tahsildar with powers of Tax Recovery Officer. The question was whether such powers can be invested from the date of notification or earlier thereto. It has been turned down. There cannot be any dispute about proposition that there cannot be retrospective operation of delegated legislation. On this basis we will look into the factual aspects.NOTIFICATION 30. The notification does not specifically mentions of any section of any law. On reading it, one can very well infer that water rates were changed and it also mentions the reason and it is due to world wide industrial slackness and on the basis of representations made by various industrialists.31. There is reference of notifications dated 12/9/2001 and dated 24/10/2001 in it. It also mentions the considerations for increasing the charges 3 times. The factors were recommendations of Finance Commission, Irrigation Commission National Water Supply Authority. It also mentions the difference between the expenses incurred and income derived from present water charges.32. Now, it will be material to see the water rates mentioned in these two earlier notifications. The petitioners have not filed them on record. Respondents through referred them in their pleadings, have not filed them in time. When they attempted to file them at the time of arguments, it was strongly opposed on behalf of the petitioners. Hence even we have not granted permission.33. So we have no alternative to decide the factual aspects on the basis of pleadings and available record. The respondents no. 1 and 2 have in their Return have given the calculation thereby suggesting how rates were not made applicable retrospectively. In fact they want : to suggest that even though they have been made retrospectively applicable, they are not to the detriment of the petitioners but to their advantage. We have also read the rejoinder to the reply (filed by BILT PAPER PRODUCTS). They have simply denied the allegations. They have simply laid emphasis on the concessional rates granted as per the agreement and non application of the provisions of section 70 of M.L.R. Code.34. It is very well true that there are four periods mentioned in the schedule II attached to the impugned notification. It relates to industrial use other than cold drink. The periods start from 1/7/2000, 1/7/2001, 1/7/2002 and 1/7/2003. so the arguments on behalf of the petitioners are certainly attractive. But what we feel is that the petitioners ought to have filed earlier two notifications. They could not be taken on record due to attempt made belatedly by the respondents to file it on record. So we have no alternative to hold that the changes made as per the impugned notifications even though made applicable retrospectively, they are to the benefit of the petitioners. We draw support from the wordings of impugned notification. Industrial slackness was considered by the government and that too on the representations of the industrialists. 35. So we find that revised rates were made applicable retrospectively. We do think that all the petitioners will be having any objection if the revised rates will be given effect retrospectively. There is also no merit in the argument about enormous increase in water rates and changing the measure of computing water consumption. Earlier, it was per cubic feet. It is also changed to cubic liters. Ultimately, it is the policy decision. It has been done on the recommendations of various Authorities. It can not be interfered by the Court.
### Response:
0
### Explanation:
because it is not the canal water, but it is the Wardha river water.There is a broader meaning of canal given in 1976 Act than that was given in 1931 Act.However, there are two conditions prior to including river under canal.Either Govt. must notify river under the provisions of Section 11 of 1976 Act or such river water must have been used for the purpose of canal. Company does not claim fulfillment of either of the conditions at least till filing of this petition. For these reasons, we have no hesitation but to hold that 1976 Act is not applicable.We are satisfied that the provisions of 1966 Maharashtra Land Revenue Code are very much applicable.There is much stress on the provisions of Section 70 of the Code.Learned Adv. Shri Naik contends that second condition of Section 70 of the Code is not satisfied. It is disputed on behalf of the Govt. Section 70 of the Code empowers the Collector [when authorized by the Govt. ] to fix water rates. It can be done only when two conditions are fulfilled. One is right over the water must vest in the Govt. There is no dispute that this condition is fulfilled in case before us.On one hand, 1949 Act protects the rights acquired earlier in such water and on the other hand empowers the Govt., to make rules [including fixing of water rates].No such rules were placed before us.Immediately before 1966, 1949 Act was made applicable to State of Maharashtra with effect from 1st June, 1962 [notification dated 3rd May, 1962].. We feel that direction given as per letter dated 28th September, 1965 by Irrigation Department to the Company is a proper exercise of the power under 1949 Act. Water rate @ Rs.4.50 per 10,000 cubic feet was fixed. This direction is more appropriate than the directions dated 27th September, 1963 and 8th January, 1964. Because first does not pertain to water of Wardha river and second is superseded by 28th September, 1965 directions. So also, second was issued by Industries Department and not by Irrigation. So, admittedly, there was a law prescribing framing of rules [including fixing of rates]. But rules were not placed before us. Natural corollary will be there was no codified law in existence under which water rates are leviable prior to 1966. Hence, we conclude that second condition of Section 70 of the Maharashtra Land Revenue Code is also satisfied. So, Govt. was justified in fixing rates by issuing circular. Section 70 empowers the Govt., to do the same. Even otherwise, as per 1947 Agreement, there was a permission to manufacture nine thousand tons of paper. It must have increased due to passage of time. So, on one hand, Company cannot justify in claiming water charges at concessional rates, whereas, on the the hand, the manufacturing capacity must have been increased.. For above discussion, we conclude that there is no substance in the challenge to revise water rates. It needs to be rejected.The notification does not specifically mentions of any section of any law.On reading it, one can very well infer that water rates werechanged and it also mentions the reason and it is due to world wide industrial slackness and on the basis of representations made by various industrialists.. There is reference of notifications dated 12/9/2001 and dated 24/10/2001 in it. It also mentions the considerations for increasing the charges 3 times. The factors were recommendations of Finance Commission, Irrigation Commission National Water Supply Authority. It also mentions the difference between the expenses incurred and income derived from present water. Now, it will be material to see the water rates mentioned in these two earlier notifications. The petitioners have not filed them on record. Respondents through referred them in their pleadings, have not filed them in time. When they attempted to file them at the time of arguments, it was strongly opposed on behalf of the petitioners. Hence even we have not granted. So we have no alternative to decide the factual aspects on the basis of pleadings and available record. The respondents no. 1 and 2 have in their Return have given the calculation thereby suggesting how rates were not made applicable retrospectively. In fact they want : to suggest that even though they have been made retrospectively applicable, they are not to the detriment of the petitioners but to their advantage. We have also read the rejoinder to the reply (filed by BILT PAPER PRODUCTS). They have simply denied the allegations. They have simply laid emphasis on the concessional rates granted as per the agreement and non application of the provisions of section 70 of M.L.R.. It is very well true that there are four periods mentioned in the schedule II attached to the impugned notification. It relates to industrial use other than cold drink. The periods start from 1/7/2000, 1/7/2001, 1/7/2002 and 1/7/2003. so the arguments on behalf of the petitioners are certainly attractive. But what we feel is that the petitioners ought to have filed earlier two notifications. They could not be taken on record due to attempt made belatedly by the respondents to file it on record. So we have no alternative to hold that the changes made as per the impugned notifications even though made applicable retrospectively, they are to the benefit of the petitioners. We draw support from the wordings of impugned notification. Industrial slackness was considered by the government and that too on the representations of the industrialists.. So we find that revised rates were made applicable retrospectively. We do think that all the petitioners will be having any objection if the revised rates will be given effect retrospectively. There is also no merit in the argument about enormous increase in water rates and changing the measure of computing water consumption. Earlier, it was per cubic feet. It is also changed to cubic liters. Ultimately, it is the policy decision. It has been done on the recommendations of various Authorities. It can not be interfered by the Court.
|
Hindustan Zinc Ltd Vs. Bhagwan Singh Bhati | Dr. Arijit Pasayat, J 1. Challenge in these appeals is to the order passed by a Division Bench of the Rajasthan High Court dismissing the Civil Special Appeals filed by the appellant. The appeals were directed against the order of learned Single Judge dated 25.10.1999. 2. The respondents had filed the writ petitions seeking directions to the present appellants for giving employment to members of the families of persons whose lands were acquired at the instance of appellant M/s. Hindustan Zinc Ltd. According to them, there was an agreement with the company whereby the company had agreed to give compensation for the land acquired and also to give employment to one member of the family of the land owners.3. The learned Single Judge taking note of the submissions of the company that there was no such agreement for giving employment but in view of the policy some preference was to be given, disposed of the writ petitions. It was the stand of the company that the only direction that is to be given was to consider cases of the writ petitioners in consonance with the applicable rules of the company. The High Court referred to an earlier order and allowed the special appeals.4. Stand of the present appellant was that there was no such agreement as contended. In fact the document which has been produced to project the claim that there was any agreement to give employment as claimed was a doctored one. The Division Bench did not attach any importance to the same and directed that in view of the earlier decision dated 21st November, 1996, the Writ Petitioners were entitled to the relief claimed.5. In support of the appeals, learned counsel for the appellant submitted that two types of agreements were entered into for acquisition of land. One category related to the land acquired for the plant and the other for the residential colonies. So far as the land acquired for plant is concerned there was a specific clause i.e. Clause 6 which read as follows:"Those cultivators whose land is being acquired, one member of the family of that cultivator or his legal heirs shall be given employment according to his qualification by Hindustan Zinc in its Institution." 6. It is pointed out that so far as the land acquired for the residential colonies is concerned there was no stipulation and fraudulently a para was inserted which did not even bear the signature of any representative of the company. Though this document was produced before the High Court, the same was totally ignored. It is further pointed out that even for the lands acquired for the plant is concerned, if one family member has been given employment, no further claim can be entertained. The High Court did not also take note of the fact that the writ petitions were filed after about a decade. The land was acquired sometime in 1988 whereas the writ petitions were filed in 1998. In view of the Central Governments directives, employment can be given only as per the guidelines. The High Court has completely lost sight of these facts. 7. In response, learned counsel for the respondents submitted that since in one case relief has been granted by application of parity, the respondents were also entitled to similar relief.8. It appears that various points urged by the appellant have not been taken note of; more particularly the stand that the document relied upon i.e. the purported agreement was a fabricated one and there was an insertion unauthorizedly by manipulation. It is to be noted that the factual scenario of the order on which the Division Bench of the High Court placed reliance was rendered in a factually different scenario. It is also stated that reliance should not have been placed on the order in a routine manner.9. The High Court has not indicated as to how the factual scenario is similar. No finding has also been recorded on the stand that the writ petition not only was belated but also was founded on a fabricated document. It is therefore appropriate to set aside the impugned order of the High Court and remit the matter to it for fresh consideration in accordance with law. The High Court is requested to explore the possibility of disposing of the appeal by the end of July, 2008.10. | 1[ds]It appears that various points urged by the appellant have not been taken note of; more particularly the stand that the document relied upon i.e. the purported agreement was a fabricated one and there was an insertion unauthorizedly by manipulation. It is to be noted that the factual scenario of the order on which the Division Bench of the High Court placed reliance was rendered in a factually different scenario. It is also stated that reliance should not have been placed on the order in a routine manner.9. The High Court has not indicated as to how the factual scenario is similar. No finding has also been recorded on the stand that the writ petition not only was belated but also was founded on a fabricated document. It is therefore appropriate to set aside the impugned order of the High Court and remit the matter to it for fresh consideration in accordance with law. The High Court is requested to explore the possibility of disposing of the appeal by the end of July, 2008. | 1 | 775 | 188 | ### 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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Dr. Arijit Pasayat, J 1. Challenge in these appeals is to the order passed by a Division Bench of the Rajasthan High Court dismissing the Civil Special Appeals filed by the appellant. The appeals were directed against the order of learned Single Judge dated 25.10.1999. 2. The respondents had filed the writ petitions seeking directions to the present appellants for giving employment to members of the families of persons whose lands were acquired at the instance of appellant M/s. Hindustan Zinc Ltd. According to them, there was an agreement with the company whereby the company had agreed to give compensation for the land acquired and also to give employment to one member of the family of the land owners.3. The learned Single Judge taking note of the submissions of the company that there was no such agreement for giving employment but in view of the policy some preference was to be given, disposed of the writ petitions. It was the stand of the company that the only direction that is to be given was to consider cases of the writ petitioners in consonance with the applicable rules of the company. The High Court referred to an earlier order and allowed the special appeals.4. Stand of the present appellant was that there was no such agreement as contended. In fact the document which has been produced to project the claim that there was any agreement to give employment as claimed was a doctored one. The Division Bench did not attach any importance to the same and directed that in view of the earlier decision dated 21st November, 1996, the Writ Petitioners were entitled to the relief claimed.5. In support of the appeals, learned counsel for the appellant submitted that two types of agreements were entered into for acquisition of land. One category related to the land acquired for the plant and the other for the residential colonies. So far as the land acquired for plant is concerned there was a specific clause i.e. Clause 6 which read as follows:"Those cultivators whose land is being acquired, one member of the family of that cultivator or his legal heirs shall be given employment according to his qualification by Hindustan Zinc in its Institution." 6. It is pointed out that so far as the land acquired for the residential colonies is concerned there was no stipulation and fraudulently a para was inserted which did not even bear the signature of any representative of the company. Though this document was produced before the High Court, the same was totally ignored. It is further pointed out that even for the lands acquired for the plant is concerned, if one family member has been given employment, no further claim can be entertained. The High Court did not also take note of the fact that the writ petitions were filed after about a decade. The land was acquired sometime in 1988 whereas the writ petitions were filed in 1998. In view of the Central Governments directives, employment can be given only as per the guidelines. The High Court has completely lost sight of these facts. 7. In response, learned counsel for the respondents submitted that since in one case relief has been granted by application of parity, the respondents were also entitled to similar relief.8. It appears that various points urged by the appellant have not been taken note of; more particularly the stand that the document relied upon i.e. the purported agreement was a fabricated one and there was an insertion unauthorizedly by manipulation. It is to be noted that the factual scenario of the order on which the Division Bench of the High Court placed reliance was rendered in a factually different scenario. It is also stated that reliance should not have been placed on the order in a routine manner.9. The High Court has not indicated as to how the factual scenario is similar. No finding has also been recorded on the stand that the writ petition not only was belated but also was founded on a fabricated document. It is therefore appropriate to set aside the impugned order of the High Court and remit the matter to it for fresh consideration in accordance with law. The High Court is requested to explore the possibility of disposing of the appeal by the end of July, 2008.10.
### Response:
1
### Explanation:
It appears that various points urged by the appellant have not been taken note of; more particularly the stand that the document relied upon i.e. the purported agreement was a fabricated one and there was an insertion unauthorizedly by manipulation. It is to be noted that the factual scenario of the order on which the Division Bench of the High Court placed reliance was rendered in a factually different scenario. It is also stated that reliance should not have been placed on the order in a routine manner.9. The High Court has not indicated as to how the factual scenario is similar. No finding has also been recorded on the stand that the writ petition not only was belated but also was founded on a fabricated document. It is therefore appropriate to set aside the impugned order of the High Court and remit the matter to it for fresh consideration in accordance with law. The High Court is requested to explore the possibility of disposing of the appeal by the end of July, 2008.
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International Finance Corpn & Another Vs. Bihar State Industrial Developmetn Corpn & Others | BSIDC in the Company. The operative portion of the order of BIFR did not in any way affect BSIDC at all. Nevertheless, about four months after the filing of the writ petition the interim order which has been impugned before us was passed by the High Court of Patna for no ostensible reason except that anything done in haste may create more problems and that it would be in the interest of all concerned if the advertisements as directed by BIFR were stayed. 12. We have heard the matter at length. We are of the view that repeated interference in the proceedings of BIFR has benefited nobody except the persons who continue in the management of the Company. The secured creditors have certainly been deprived of their normal rights to recover their dues by reason of the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as "the Act"). While they are hamstrung by the rigors of those provisions, the present management of the Company continued to enjoy the protection of the umbrella provided by S.22 of the Act. In the circumstances it is of utmost importance that the courts do not lengthen the proceedings before BIFR unless such interference is absolutely imperative for well defined reasons in the interest of the creditors as a whole and in the interest of the workers and the sick industry itself, but not in the interest of a particular management. It must be kept in mind that BIFR has been statutorily conferred with special powers to adjudicate upon the question of the revival of a company and it has the necessary expertise at its command for doing so. If the Board has taken steps in accordance with commercially advisable and legally sustainable principles after considering the view of the parties likely to be affected and in a manner which may not be said to be irrational or perverse, the Court should not interfere in the process. That was why this Court had, as far back as in 2001 directed BIFR to dispose of the matter expeditiously before it. Clearly BIFR, despite that mandate by this Court has not been able to comply and the only reason was the repeated litigation.13. The appellants in this appeal have filed petitions for transfer of the third and fourth writ petitions filed by the respondent Company and BSIDC respectively. Since all the parties are before us and since we have to consider the merits of the order dated 17-2-2003 of BIFR, we allow the transfer petitions and transfer both writ petitions to this Court as the same issue appears to be the subject matter of scrutiny before the two High Courts.14. The reasoning of BIFR in the order dated 17-2-2003 cannot be faulted. Sufficient opportunities appear to have been given at every stage to the private promoters and the Government of Jharkhand to invest the amounts as proposed in the Scheme of IFCI. The order for advertisement may give a better deal to the secured creditors and a better chance for survival of the industry. But in order to give a last chance to the private promoters and the Government of Jharkhand to take advantage of the Scheme framed by IFCI instead of allowing the appeal right away, we direct that:(1) The private promoters shall deposit an amount of Rs 32.50 crores with IFCI by 12-7-2004. It is admitted by IFCI that pursuant to an interim order passed by the High Court at Patna an amount of Rs 12.6 crores has already been deposited with IFCI. The requirement to pay the sum of Rs 32.50 crores as indicated by us will, therefore, be less by the amount already deposited.(2) The matter will be listed before the Vacation Bench on 28-5-2004. The State of Jharkhand has affirmed an affidavit to the effect that although an "in-principle" decision had been taken by the State to rehabilitate the Company, and although the assistance of Rs 32.50 crores had been recommended by a committee constituted specially for the purpose, nevertheless, the State Government has not yet taken a decision whether it was willing to put in the necessary finance without imposing any conditions at least before BIFR irrespective of any agreement that may be arrived at between the promoters and the State. The States offer to give Rs 32.50 crores under the IFCI Scheme is also hedged in by several conditions, namely, that the assistance would be given under the provisions of the Jharkhand Industries Rehabilitation Scheme, 2003; the assistance would be considered only when BIFR approves the proposal after taking consent of the financial institutions and the State Government and only if the security would be given to the State in terms of the guidelines prescribed by Reserve Bank of India and nationalised banks.We are not prepared to impose any such conditions as far as the States participation in the Scheme is concerned. The issue of security in respect of the loan must be worked out between the State and the promoters, if it so desires. It is being made clear that the States securities, if any, in the Companys assets can only be subject to the claims of the secured creditors who are already before BIFR. Given the conditional nature of the offer in the affidavit filed by the State Government, we direct the State Government to expressly state to this Court on 28-5-2004 whether it is willing to give a soft loan of Rs 32.50 crores on such conditions which will not impinge on and be subject to the security of the secured creditors of the Company. In such event, the State Government must also put in the necessary funds i.e. Rs 32.50 crores with IFCI by 12-7-2004. (3) In the event, the State Government is not willing to give the financial assistance in terms of the preceding paragraphs, it will be open to the private promoters to arrange for an alternative source and deposit the said amount with IFCI within the aforesaid period. | 1[ds]We are of the view that repeated interference in the proceedings of BIFR has benefited nobody except the persons who continue in the management of the Company. The secured creditors have certainly been deprived of their normal rights to recover their dues by reason of the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as "the Act"). While they are hamstrung by the rigors of those provisions, the present management of the Company continued to enjoy the protection of the umbrella provided by S.22 of the Act. In the circumstances it is of utmost importance that the courts do not lengthen the proceedings before BIFR unless such interference is absolutely imperative for well defined reasons in the interest of the creditors as a whole and in the interest of the workers and the sick industry itself, but not in the interest of a particular management. It must be kept in mind that BIFR has been statutorily conferred with special powers to adjudicate upon the question of the revival of a company and it has the necessary expertise at its command for doing so. If the Board has taken steps in accordance with commercially advisable and legally sustainable principles after considering the view of the parties likely to be affected and in a manner which may not be said to be irrational or perverse, the Court should not interfere in the process. That was why this Court had, as far back as in 2001 directed BIFR to dispose of the matter expeditiously before it. Clearly BIFR, despite that mandate by this Court has not been able to comply and the only reason was the repeated litigation.13. The appellants in this appeal have filed petitions for transfer of the third and fourth writ petitions filed by the respondent Company and BSIDC respectively. Since all the parties are before us and since we have to consider the merits of the order datedof BIFR, we allow the transfer petitions and transfer both writ petitions to this Court as the same issue appears to be the subject matter of scrutiny before the two High Courts.14. The reasoning of BIFR in the order datedcannot be faulted. Sufficient opportunities appear to have been given at every stage to the private promoters and the Government of Jharkhand to invest the amounts as proposed in the Scheme of IFCI. The order for advertisement may give a better deal to the secured creditors and a better chance for survival of the industry. But in order to give a last chance to the private promoters and the Government of Jharkhand to take advantage of the Scheme framed by IFCI instead of allowing the appeal right away, we direct that:(1) The private promoters shall deposit an amount of Rs 32.50 crores with IFCI byIt is admitted by IFCI that pursuant to an interim order passed by the High Court at Patna an amount of Rs 12.6 crores has already been deposited with IFCI. The requirement to pay the sum of Rs 32.50 crores as indicated by us will, therefore, be less by the amount already deposited.(2) The matter will be listed before the Vacation Bench onThe State of Jharkhand has affirmed an affidavit to the effect that although andecision had been taken by the State to rehabilitate the Company, and although the assistance of Rs 32.50 crores had been recommended by a committee constituted specially for the purpose, nevertheless, the State Government has not yet taken a decision whether it was willing to put in the necessary finance without imposing any conditions at least before BIFR irrespective of any agreement that may be arrived at between the promoters and the State. The States offer to give Rs 32.50 crores under the IFCI Scheme is also hedged in by several conditions, namely, that the assistance would be given under the provisions of the Jharkhand Industries Rehabilitation Scheme, 2003; the assistance would be considered only when BIFR approves the proposal after taking consent of the financial institutions and the State Government and only if the security would be given to the State in terms of the guidelines prescribed by Reserve Bank of India and nationalised banks.We are not prepared to impose any such conditions as far as the States participation in the Scheme is concerned. The issue of security in respect of the loan must be worked out between the State and the promoters, if it so desires. It is being made clear that the States securities, if any, in the Companys assets can only be subject to the claims of the secured creditors who are already before BIFR. Given the conditional nature of the offer in the affidavit filed by the State Government, we direct the State Government to expressly state to this Court onwhether it is willing to give a soft loan of Rs 32.50 crores on such conditions which will not impinge on and be subject to the security of the secured creditors of the Company. | 1 | 2,592 | 888 | ### Instruction:
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BSIDC in the Company. The operative portion of the order of BIFR did not in any way affect BSIDC at all. Nevertheless, about four months after the filing of the writ petition the interim order which has been impugned before us was passed by the High Court of Patna for no ostensible reason except that anything done in haste may create more problems and that it would be in the interest of all concerned if the advertisements as directed by BIFR were stayed. 12. We have heard the matter at length. We are of the view that repeated interference in the proceedings of BIFR has benefited nobody except the persons who continue in the management of the Company. The secured creditors have certainly been deprived of their normal rights to recover their dues by reason of the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as "the Act"). While they are hamstrung by the rigors of those provisions, the present management of the Company continued to enjoy the protection of the umbrella provided by S.22 of the Act. In the circumstances it is of utmost importance that the courts do not lengthen the proceedings before BIFR unless such interference is absolutely imperative for well defined reasons in the interest of the creditors as a whole and in the interest of the workers and the sick industry itself, but not in the interest of a particular management. It must be kept in mind that BIFR has been statutorily conferred with special powers to adjudicate upon the question of the revival of a company and it has the necessary expertise at its command for doing so. If the Board has taken steps in accordance with commercially advisable and legally sustainable principles after considering the view of the parties likely to be affected and in a manner which may not be said to be irrational or perverse, the Court should not interfere in the process. That was why this Court had, as far back as in 2001 directed BIFR to dispose of the matter expeditiously before it. Clearly BIFR, despite that mandate by this Court has not been able to comply and the only reason was the repeated litigation.13. The appellants in this appeal have filed petitions for transfer of the third and fourth writ petitions filed by the respondent Company and BSIDC respectively. Since all the parties are before us and since we have to consider the merits of the order dated 17-2-2003 of BIFR, we allow the transfer petitions and transfer both writ petitions to this Court as the same issue appears to be the subject matter of scrutiny before the two High Courts.14. The reasoning of BIFR in the order dated 17-2-2003 cannot be faulted. Sufficient opportunities appear to have been given at every stage to the private promoters and the Government of Jharkhand to invest the amounts as proposed in the Scheme of IFCI. The order for advertisement may give a better deal to the secured creditors and a better chance for survival of the industry. But in order to give a last chance to the private promoters and the Government of Jharkhand to take advantage of the Scheme framed by IFCI instead of allowing the appeal right away, we direct that:(1) The private promoters shall deposit an amount of Rs 32.50 crores with IFCI by 12-7-2004. It is admitted by IFCI that pursuant to an interim order passed by the High Court at Patna an amount of Rs 12.6 crores has already been deposited with IFCI. The requirement to pay the sum of Rs 32.50 crores as indicated by us will, therefore, be less by the amount already deposited.(2) The matter will be listed before the Vacation Bench on 28-5-2004. The State of Jharkhand has affirmed an affidavit to the effect that although an "in-principle" decision had been taken by the State to rehabilitate the Company, and although the assistance of Rs 32.50 crores had been recommended by a committee constituted specially for the purpose, nevertheless, the State Government has not yet taken a decision whether it was willing to put in the necessary finance without imposing any conditions at least before BIFR irrespective of any agreement that may be arrived at between the promoters and the State. The States offer to give Rs 32.50 crores under the IFCI Scheme is also hedged in by several conditions, namely, that the assistance would be given under the provisions of the Jharkhand Industries Rehabilitation Scheme, 2003; the assistance would be considered only when BIFR approves the proposal after taking consent of the financial institutions and the State Government and only if the security would be given to the State in terms of the guidelines prescribed by Reserve Bank of India and nationalised banks.We are not prepared to impose any such conditions as far as the States participation in the Scheme is concerned. The issue of security in respect of the loan must be worked out between the State and the promoters, if it so desires. It is being made clear that the States securities, if any, in the Companys assets can only be subject to the claims of the secured creditors who are already before BIFR. Given the conditional nature of the offer in the affidavit filed by the State Government, we direct the State Government to expressly state to this Court on 28-5-2004 whether it is willing to give a soft loan of Rs 32.50 crores on such conditions which will not impinge on and be subject to the security of the secured creditors of the Company. In such event, the State Government must also put in the necessary funds i.e. Rs 32.50 crores with IFCI by 12-7-2004. (3) In the event, the State Government is not willing to give the financial assistance in terms of the preceding paragraphs, it will be open to the private promoters to arrange for an alternative source and deposit the said amount with IFCI within the aforesaid period.
### Response:
1
### Explanation:
We are of the view that repeated interference in the proceedings of BIFR has benefited nobody except the persons who continue in the management of the Company. The secured creditors have certainly been deprived of their normal rights to recover their dues by reason of the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as "the Act"). While they are hamstrung by the rigors of those provisions, the present management of the Company continued to enjoy the protection of the umbrella provided by S.22 of the Act. In the circumstances it is of utmost importance that the courts do not lengthen the proceedings before BIFR unless such interference is absolutely imperative for well defined reasons in the interest of the creditors as a whole and in the interest of the workers and the sick industry itself, but not in the interest of a particular management. It must be kept in mind that BIFR has been statutorily conferred with special powers to adjudicate upon the question of the revival of a company and it has the necessary expertise at its command for doing so. If the Board has taken steps in accordance with commercially advisable and legally sustainable principles after considering the view of the parties likely to be affected and in a manner which may not be said to be irrational or perverse, the Court should not interfere in the process. That was why this Court had, as far back as in 2001 directed BIFR to dispose of the matter expeditiously before it. Clearly BIFR, despite that mandate by this Court has not been able to comply and the only reason was the repeated litigation.13. The appellants in this appeal have filed petitions for transfer of the third and fourth writ petitions filed by the respondent Company and BSIDC respectively. Since all the parties are before us and since we have to consider the merits of the order datedof BIFR, we allow the transfer petitions and transfer both writ petitions to this Court as the same issue appears to be the subject matter of scrutiny before the two High Courts.14. The reasoning of BIFR in the order datedcannot be faulted. Sufficient opportunities appear to have been given at every stage to the private promoters and the Government of Jharkhand to invest the amounts as proposed in the Scheme of IFCI. The order for advertisement may give a better deal to the secured creditors and a better chance for survival of the industry. But in order to give a last chance to the private promoters and the Government of Jharkhand to take advantage of the Scheme framed by IFCI instead of allowing the appeal right away, we direct that:(1) The private promoters shall deposit an amount of Rs 32.50 crores with IFCI byIt is admitted by IFCI that pursuant to an interim order passed by the High Court at Patna an amount of Rs 12.6 crores has already been deposited with IFCI. The requirement to pay the sum of Rs 32.50 crores as indicated by us will, therefore, be less by the amount already deposited.(2) The matter will be listed before the Vacation Bench onThe State of Jharkhand has affirmed an affidavit to the effect that although andecision had been taken by the State to rehabilitate the Company, and although the assistance of Rs 32.50 crores had been recommended by a committee constituted specially for the purpose, nevertheless, the State Government has not yet taken a decision whether it was willing to put in the necessary finance without imposing any conditions at least before BIFR irrespective of any agreement that may be arrived at between the promoters and the State. The States offer to give Rs 32.50 crores under the IFCI Scheme is also hedged in by several conditions, namely, that the assistance would be given under the provisions of the Jharkhand Industries Rehabilitation Scheme, 2003; the assistance would be considered only when BIFR approves the proposal after taking consent of the financial institutions and the State Government and only if the security would be given to the State in terms of the guidelines prescribed by Reserve Bank of India and nationalised banks.We are not prepared to impose any such conditions as far as the States participation in the Scheme is concerned. The issue of security in respect of the loan must be worked out between the State and the promoters, if it so desires. It is being made clear that the States securities, if any, in the Companys assets can only be subject to the claims of the secured creditors who are already before BIFR. Given the conditional nature of the offer in the affidavit filed by the State Government, we direct the State Government to expressly state to this Court onwhether it is willing to give a soft loan of Rs 32.50 crores on such conditions which will not impinge on and be subject to the security of the secured creditors of the Company.
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Moti Ram Vs. Param Dev & Another | to be effective. It would, therefore, appear that the act of relinquishment of the office of Chairman of the Board is unilateral in character an d the resignation from the said office takes effect when it is communicated without any further action being required to be taken on the same. Since the Chairman of the Board is nominated by the Government of Himachal Pradesh under Section 4(2) o f the Act, resignation hasalso to be communicated to the Government of Himachal Pradesh i.e., the Head of the Department dealing with the Board, and once it is so communicated it takes effect from the date of such communication if the resignation is in presenti or from the date indicated therein if it is prospective in nature to be operative from a future date. 16. This means that the act of relinquishment of the office of Chairman of the Board differs from the act of relinquishment from the office of a Member of the Board in the sense that while the act of relinquishment of office of a Member is bilateral in character requiring certain action, namely, resignation being notified in the Official Gazette by the Government of Himachal Pradesh before it comes into effect, the act of relinquishment of the office of Chairman of the Board is unilateral in character. The decisions on which reliance has been placed by Shri Ganguli relating to contracts of empl oyment where the act of relinquishment has been held to be bilateral in character requiring acceptance of the resignation, can, therefore, have no application to the present case where the act of relinquishment of the office of Chairman of the Boa rd is unilateral in character. 17. Three possible situations involving resignation by a person holding the office of Chairman of the Board can be envisaged: (i) He may resign only from the office of the Chairman of the Board. In such a case if the resignation is in presenti it would take effect from the date of communication of the resignation to the Head of the Department in the Government of Himachal Pradesh it would take effect from the date as indicated in the said resignation if the resignation is prospective to be operative from a future date. (ii)He may resign only from the office of the member of the Board. This resignation would take effect from the date the resignation is notified in the Official Gazette by the Government of Himachal Pradesh and with effect from the said date the Chairman would cease to be a member of the Board. Since a person cannot continue as Chairman of the Board after he has ceased to be a member of the Board, he would also cease to be the Chairman of the Board from the date of his resignation as member of the Board is notified in the Official Gazette by the Government of Himachal Pradesh. (iii)He may resign both from the office of Chairman of the Board as well as from the office of member of the Board. In such a case, his resignation from the office of Chairman of the Board would take effect from the date of communication to the Head of the Department in the Government of Himachal pradesh if it is it? praesentior from the date indicated therein if it is prospective to be operative from a future date. He would, however, continue to be a member of the Board till his resignation from the office of member is notified in the Official Gazette by the Government o f Himachal Pradesh under Section 7 of the Act. 18. The instant case falls in the third category because Shri Karam Singh, by his letter dated January 31, 1990, resigned from the office of member as well as the office of Chairman of the Board and wanted the resignation to be accepted with effect from the same day, i.e., January 31, 1990. By notification dated February 12, 1990, it was notified that the resignation of Shri Karam Singh Thakur, as Chairman of the Board has been accepted by the Governor of Himachal Pradesh with immediate effect. In our opinion, the said notification dated February 12, 1990, proceeds under a misconception of the correct legal position. The resignation of Shri Karam Singh as Chairman of the Board was not required to be accepted by the Government of Himachal Pradesh. It became effective on January 31, 1990 when the letter of resignation was received by the Financial Commissioner-cum-Secretary (Industries) to the Government of Himachal Pradesh who was the Head of the Department dealing with the Board and to whom it was addressed. Since there is no requirement in the Act that the resignation of the Chairman of the Bord should be notified in the Official Gazette as in the case of a member of the Board, it cannot be said that the resignation of Shri Karam Singh did not take effect till it was notified in the official gazette vide notification dated February 12, 1990.The High Court was, therefore, right in taking the view that Shri Karam Singh had ceased to hold the office of the Chairman of the Board having resigned from the said office on January 31, 1990, and the said resignation became effective from that date itself and that on the dat e of scrutiny, i.e., February 5, 1990, he was not holding an office of profit. For that reason, it has been rightly held that the nomination of Shri Karam Singh was improperly rejected by the Returning Officer. 19. Since we are in agreement with the view of the High Court that the nomination of Shri Karam Singh had been improperly rejected for the reason that he was not holding the office of the Chairman of the Board on the date of scrutiny, we do not consider it necessary to go into the question whether the office of Chairman of the Board held by Shri Karam Singh had ceased to be an office of profit after January 8, 1990.20. | 0[ds]The instant case falls in the third category because Shri Karam Singh, by his letter dated January 31, 1990, resigned from the office of member as well as the office of Chairman of the Board and wanted the resignation to be accepted with effect from the same day, i.e., January 31, 1990. By notification dated February 12, 1990, it was notified that the resignation of Shri Karam Singh Thakur, as Chairman of the Board has been accepted by the Governor of Himachal Pradesh with immediate effect. In our opinion, the said notification dated February 12, 1990, proceeds under a misconception of the correct legal position. The resignation of Shri Karam Singh as Chairman of the Board was not required to be accepted by the Government of Himachal Pradesh. It became effective on January 31, 1990 when the letter of resignation was received by the Financial Commissioner-cum-Secretary (Industries) to the Government of Himachal Pradesh who was the Head of the Department dealing with the Board and to whom it was addressed. Since there is no requirement in the Act that the resignation of the Chairman of the Bord should be notified in the Official Gazette as in the case of a member of the Board, it cannot be said that the resignation of Shri Karam Singh did not take effect till it was notified in the official gazette vide notification dated February 12, 1990.The High Court was, therefore, right in taking the view that Shri Karam Singh had ceased to hold the office of the Chairman of the Board having resigned from the said office on January 31, 1990, and the said resignation became effective from that date itself and that on the dat e of scrutiny, i.e., February 5, 1990, he was not holding an office of profit. For that reason, it has been rightly held that the nomination of Shri Karam Singh was improperly rejected by the Returningwe are in agreement with the view of the High Court that the nomination of Shri Karam Singh had been improperly rejected for the reason that he was not holding the office of the Chairman of the Board on the date of scrutiny, we do not consider it necessary to go into the question whether the office of Chairman of the Board held by Shri Karam Singh had ceased to be an office of profit after January 8, 1990. | 0 | 6,065 | 437 | ### Instruction:
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to be effective. It would, therefore, appear that the act of relinquishment of the office of Chairman of the Board is unilateral in character an d the resignation from the said office takes effect when it is communicated without any further action being required to be taken on the same. Since the Chairman of the Board is nominated by the Government of Himachal Pradesh under Section 4(2) o f the Act, resignation hasalso to be communicated to the Government of Himachal Pradesh i.e., the Head of the Department dealing with the Board, and once it is so communicated it takes effect from the date of such communication if the resignation is in presenti or from the date indicated therein if it is prospective in nature to be operative from a future date. 16. This means that the act of relinquishment of the office of Chairman of the Board differs from the act of relinquishment from the office of a Member of the Board in the sense that while the act of relinquishment of office of a Member is bilateral in character requiring certain action, namely, resignation being notified in the Official Gazette by the Government of Himachal Pradesh before it comes into effect, the act of relinquishment of the office of Chairman of the Board is unilateral in character. The decisions on which reliance has been placed by Shri Ganguli relating to contracts of empl oyment where the act of relinquishment has been held to be bilateral in character requiring acceptance of the resignation, can, therefore, have no application to the present case where the act of relinquishment of the office of Chairman of the Boa rd is unilateral in character. 17. Three possible situations involving resignation by a person holding the office of Chairman of the Board can be envisaged: (i) He may resign only from the office of the Chairman of the Board. In such a case if the resignation is in presenti it would take effect from the date of communication of the resignation to the Head of the Department in the Government of Himachal Pradesh it would take effect from the date as indicated in the said resignation if the resignation is prospective to be operative from a future date. (ii)He may resign only from the office of the member of the Board. This resignation would take effect from the date the resignation is notified in the Official Gazette by the Government of Himachal Pradesh and with effect from the said date the Chairman would cease to be a member of the Board. Since a person cannot continue as Chairman of the Board after he has ceased to be a member of the Board, he would also cease to be the Chairman of the Board from the date of his resignation as member of the Board is notified in the Official Gazette by the Government of Himachal Pradesh. (iii)He may resign both from the office of Chairman of the Board as well as from the office of member of the Board. In such a case, his resignation from the office of Chairman of the Board would take effect from the date of communication to the Head of the Department in the Government of Himachal pradesh if it is it? praesentior from the date indicated therein if it is prospective to be operative from a future date. He would, however, continue to be a member of the Board till his resignation from the office of member is notified in the Official Gazette by the Government o f Himachal Pradesh under Section 7 of the Act. 18. The instant case falls in the third category because Shri Karam Singh, by his letter dated January 31, 1990, resigned from the office of member as well as the office of Chairman of the Board and wanted the resignation to be accepted with effect from the same day, i.e., January 31, 1990. By notification dated February 12, 1990, it was notified that the resignation of Shri Karam Singh Thakur, as Chairman of the Board has been accepted by the Governor of Himachal Pradesh with immediate effect. In our opinion, the said notification dated February 12, 1990, proceeds under a misconception of the correct legal position. The resignation of Shri Karam Singh as Chairman of the Board was not required to be accepted by the Government of Himachal Pradesh. It became effective on January 31, 1990 when the letter of resignation was received by the Financial Commissioner-cum-Secretary (Industries) to the Government of Himachal Pradesh who was the Head of the Department dealing with the Board and to whom it was addressed. Since there is no requirement in the Act that the resignation of the Chairman of the Bord should be notified in the Official Gazette as in the case of a member of the Board, it cannot be said that the resignation of Shri Karam Singh did not take effect till it was notified in the official gazette vide notification dated February 12, 1990.The High Court was, therefore, right in taking the view that Shri Karam Singh had ceased to hold the office of the Chairman of the Board having resigned from the said office on January 31, 1990, and the said resignation became effective from that date itself and that on the dat e of scrutiny, i.e., February 5, 1990, he was not holding an office of profit. For that reason, it has been rightly held that the nomination of Shri Karam Singh was improperly rejected by the Returning Officer. 19. Since we are in agreement with the view of the High Court that the nomination of Shri Karam Singh had been improperly rejected for the reason that he was not holding the office of the Chairman of the Board on the date of scrutiny, we do not consider it necessary to go into the question whether the office of Chairman of the Board held by Shri Karam Singh had ceased to be an office of profit after January 8, 1990.20.
### Response:
0
### Explanation:
The instant case falls in the third category because Shri Karam Singh, by his letter dated January 31, 1990, resigned from the office of member as well as the office of Chairman of the Board and wanted the resignation to be accepted with effect from the same day, i.e., January 31, 1990. By notification dated February 12, 1990, it was notified that the resignation of Shri Karam Singh Thakur, as Chairman of the Board has been accepted by the Governor of Himachal Pradesh with immediate effect. In our opinion, the said notification dated February 12, 1990, proceeds under a misconception of the correct legal position. The resignation of Shri Karam Singh as Chairman of the Board was not required to be accepted by the Government of Himachal Pradesh. It became effective on January 31, 1990 when the letter of resignation was received by the Financial Commissioner-cum-Secretary (Industries) to the Government of Himachal Pradesh who was the Head of the Department dealing with the Board and to whom it was addressed. Since there is no requirement in the Act that the resignation of the Chairman of the Bord should be notified in the Official Gazette as in the case of a member of the Board, it cannot be said that the resignation of Shri Karam Singh did not take effect till it was notified in the official gazette vide notification dated February 12, 1990.The High Court was, therefore, right in taking the view that Shri Karam Singh had ceased to hold the office of the Chairman of the Board having resigned from the said office on January 31, 1990, and the said resignation became effective from that date itself and that on the dat e of scrutiny, i.e., February 5, 1990, he was not holding an office of profit. For that reason, it has been rightly held that the nomination of Shri Karam Singh was improperly rejected by the Returningwe are in agreement with the view of the High Court that the nomination of Shri Karam Singh had been improperly rejected for the reason that he was not holding the office of the Chairman of the Board on the date of scrutiny, we do not consider it necessary to go into the question whether the office of Chairman of the Board held by Shri Karam Singh had ceased to be an office of profit after January 8, 1990.
|
Sharda Associates Vs. United India Insurance Company Ltd | or attached thereto except for loss or damage arising directly from fire, explosion selfignition or lightening or burglary housebreaking or theft. b) Under Section II except so far as is necessary to meet the requirements of the Motor Vehicles Act, 1988, in respect of liability incurred by the insured arising out of the operation as a tool of such vehicle or of plant farming part of such vehicle or attached thereto. N.B.: Omit paragraph (a) for :- i. Liability only Policies. ii. Package Policies where an additional premium has been paid for inclusion of damage by overturning. NOTE: Insert make, number or some other means of identification. Where a premium reduction is allowed for exclusion of damage when in use as a tool of trade omit from paragraph (a) the words resulting from overturning and except for loss ... or theft. 7. Mr Jaideep Singh, counsel appearing on behalf of the appellant, urges that: i. The NCDRC was not justified in reversing concurrent findings of fact which were recorded by the District Forum and by the SCDRC to the effect that the excavator was not being used as a tool of trade, when the accident occurred; and ii. In any event, it is apparent from the survey report as well as the findings of fact which have emerged on the record that the excavator suffered an accident due to a landslide or the collapsing of the road, to which IMT 47 would not stand attracted. 8. On the other hand, Mr Abhishek Gola, counsel appearing on behalf of the insurer, submitted that IMT 47 was specifically designed to meet such contingencies in which event the insurer would not be liable unless an additional premium was paid. In this context, counsel relied upon the complaint which was lodged to the police station which specifically adverted to the fact that the soil under the machine had collapsed resulting in the excavator falling into a deep ditch. Moreover, the counsel has also adverted to the survey report, according to which, there was a sudden collapse of the edge of the road side, as a result of which the machine rolled down about 500 meters. 9. In order to attract the applicability of IMT 47, certain specific conditions have to be fulfilled. IMT 47 excludes liability: i. Where the loss or damage has resulted from overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto; ii. Unless the loss or damage is directly arising from fire, explosion, self-ignition, lightning, burglary, house breaking or theft. 10. It is important to note that clause 1 of the insurance policy, which has been extracted earlier, specifically covers a loss or damage which arises as a consequence of a landslide. IMT 47 applies to a situation where the loss or damage has been caused due to overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or forming a part thereto. In other words, for the provisions of IMT 47 to be applied, it is essential to establish that the loss or damage was caused due to overturning and that the overturning should arise out of the operation as a tool of such vehicle. The NCDRC was persuaded to adopt the view of the insurer that an excavator could be used either as a tool of trade or as a vehicle and, in the present case, since it was being used for the purpose of road construction, it was not being used as a vehicle. However, the line of reasoning of the NCDRC clearly missed the point that in the present case the accident was caused as a result of a portion of the road having given way. The accident was in the nature of a landslide, as a result of which the vehicle fell into a deep ditch occasioning the death of the operator and the helper and a total loss of the machine. 11. The situation, in the present case, therefore, did not involve loss or damage due to the overturning of the vehicle. Consequently, even if, for the sake of argument, the submission of the insurer that the vehicle was being used as a tool were to be accepted, it is impossible to subscribe to the findings of fact of the NCDRC. The damage or loss was not as a result of the overturning of the vehicle, but was plainly due to the collapsing of the road, which resulted in the vehicle falling into a deep ditch in a hilly terrain of the State of Uttarakhand. 12. Counsel appearing on behalf of the appellant submitted that NCDRC could not have reappreciated the facts in its revisional jurisdiction of NCDRC under Section 21(b) of the Consumer Protection Act 1986. In a judgment of a three judge Bench in Lourdes Society Snehanjali Girls Hostel v H&R Johnson (India) Ltd (2016) 8 SCC 286, this Court held that the NCDRC should not have interfered with the concurrent findings of fact in the judgments impugned before it, particularly having regard to the nature of jurisdiction conferred upon it by Section 21 of the Consumer Protection Act 1986: 17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons. […] The limited ambit of the revisional jurisdiction of the NCDRC has been reiterated in subsequent decisions of this Court, most recently in Sunil Kumar Maity v State Bank of India (Civil Appeal 432 of 2022 (Arising out of SLP(C) 21711 of 2019). | 1[ds]10. It is important to note that clause 1 of the insurance policy, which has been extracted earlier, specifically covers a loss or damage which arises as a consequence of a landslide. IMT 47 applies to a situation where the loss or damage has been caused due to overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or forming a part thereto. In other words, for the provisions of IMT 47 to be applied, it is essential to establish that the loss or damage was caused due to overturning and that the overturning should arise out of the operation as a tool of such vehicle. The NCDRC was persuaded to adopt the view of the insurer that an excavator could be used either as a tool of trade or as a vehicle and, in the present case, since it was being used for the purpose of road construction, it was not being used as a vehicle. However, the line of reasoning of the NCDRC clearly missed the point that in the present case the accident was caused as a result of a portion of the road having given way. The accident was in the nature of a landslide, as a result of which the vehicle fell into a deep ditch occasioning the death of the operator and the helper and a total loss of the machine.11. The situation, in the present case, therefore, did not involve loss or damage due to the overturning of the vehicle. Consequently, even if, for the sake of argument, the submission of the insurer that the vehicle was being used as a tool were to be accepted, it is impossible to subscribe to the findings of fact of the NCDRC. The damage or loss was not as a result of the overturning of the vehicle, but was plainly due to the collapsing of the road, which resulted in the vehicle falling into a deep ditch in a hilly terrain of the State of Uttarakhand.In a judgment of a three judge Bench in Lourdes Society Snehanjali Girls Hostel v H&R Johnson (India) Ltd (2016) 8 SCC 286, this Court held that the NCDRC should not have interfered with the concurrent findings of fact in the judgments impugned before it, particularly having regard to the nature of jurisdiction conferred upon it by Section 21 of the Consumer Protection Act 1986:17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons. […]The limited ambit of the revisional jurisdiction of the NCDRC has been reiterated in subsequent decisions of this Court, most recently in Sunil Kumar Maity v State Bank of India (Civil Appeal 432 of 2022 (Arising out of SLP(C) 21711 of 2019). | 1 | 2,502 | 585 | ### 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:
or attached thereto except for loss or damage arising directly from fire, explosion selfignition or lightening or burglary housebreaking or theft. b) Under Section II except so far as is necessary to meet the requirements of the Motor Vehicles Act, 1988, in respect of liability incurred by the insured arising out of the operation as a tool of such vehicle or of plant farming part of such vehicle or attached thereto. N.B.: Omit paragraph (a) for :- i. Liability only Policies. ii. Package Policies where an additional premium has been paid for inclusion of damage by overturning. NOTE: Insert make, number or some other means of identification. Where a premium reduction is allowed for exclusion of damage when in use as a tool of trade omit from paragraph (a) the words resulting from overturning and except for loss ... or theft. 7. Mr Jaideep Singh, counsel appearing on behalf of the appellant, urges that: i. The NCDRC was not justified in reversing concurrent findings of fact which were recorded by the District Forum and by the SCDRC to the effect that the excavator was not being used as a tool of trade, when the accident occurred; and ii. In any event, it is apparent from the survey report as well as the findings of fact which have emerged on the record that the excavator suffered an accident due to a landslide or the collapsing of the road, to which IMT 47 would not stand attracted. 8. On the other hand, Mr Abhishek Gola, counsel appearing on behalf of the insurer, submitted that IMT 47 was specifically designed to meet such contingencies in which event the insurer would not be liable unless an additional premium was paid. In this context, counsel relied upon the complaint which was lodged to the police station which specifically adverted to the fact that the soil under the machine had collapsed resulting in the excavator falling into a deep ditch. Moreover, the counsel has also adverted to the survey report, according to which, there was a sudden collapse of the edge of the road side, as a result of which the machine rolled down about 500 meters. 9. In order to attract the applicability of IMT 47, certain specific conditions have to be fulfilled. IMT 47 excludes liability: i. Where the loss or damage has resulted from overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or attached thereto; ii. Unless the loss or damage is directly arising from fire, explosion, self-ignition, lightning, burglary, house breaking or theft. 10. It is important to note that clause 1 of the insurance policy, which has been extracted earlier, specifically covers a loss or damage which arises as a consequence of a landslide. IMT 47 applies to a situation where the loss or damage has been caused due to overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or forming a part thereto. In other words, for the provisions of IMT 47 to be applied, it is essential to establish that the loss or damage was caused due to overturning and that the overturning should arise out of the operation as a tool of such vehicle. The NCDRC was persuaded to adopt the view of the insurer that an excavator could be used either as a tool of trade or as a vehicle and, in the present case, since it was being used for the purpose of road construction, it was not being used as a vehicle. However, the line of reasoning of the NCDRC clearly missed the point that in the present case the accident was caused as a result of a portion of the road having given way. The accident was in the nature of a landslide, as a result of which the vehicle fell into a deep ditch occasioning the death of the operator and the helper and a total loss of the machine. 11. The situation, in the present case, therefore, did not involve loss or damage due to the overturning of the vehicle. Consequently, even if, for the sake of argument, the submission of the insurer that the vehicle was being used as a tool were to be accepted, it is impossible to subscribe to the findings of fact of the NCDRC. The damage or loss was not as a result of the overturning of the vehicle, but was plainly due to the collapsing of the road, which resulted in the vehicle falling into a deep ditch in a hilly terrain of the State of Uttarakhand. 12. Counsel appearing on behalf of the appellant submitted that NCDRC could not have reappreciated the facts in its revisional jurisdiction of NCDRC under Section 21(b) of the Consumer Protection Act 1986. In a judgment of a three judge Bench in Lourdes Society Snehanjali Girls Hostel v H&R Johnson (India) Ltd (2016) 8 SCC 286, this Court held that the NCDRC should not have interfered with the concurrent findings of fact in the judgments impugned before it, particularly having regard to the nature of jurisdiction conferred upon it by Section 21 of the Consumer Protection Act 1986: 17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons. […] The limited ambit of the revisional jurisdiction of the NCDRC has been reiterated in subsequent decisions of this Court, most recently in Sunil Kumar Maity v State Bank of India (Civil Appeal 432 of 2022 (Arising out of SLP(C) 21711 of 2019).
### Response:
1
### Explanation:
10. It is important to note that clause 1 of the insurance policy, which has been extracted earlier, specifically covers a loss or damage which arises as a consequence of a landslide. IMT 47 applies to a situation where the loss or damage has been caused due to overturning arising out of the operation as a tool of such vehicle or of plant forming part of such vehicle or forming a part thereto. In other words, for the provisions of IMT 47 to be applied, it is essential to establish that the loss or damage was caused due to overturning and that the overturning should arise out of the operation as a tool of such vehicle. The NCDRC was persuaded to adopt the view of the insurer that an excavator could be used either as a tool of trade or as a vehicle and, in the present case, since it was being used for the purpose of road construction, it was not being used as a vehicle. However, the line of reasoning of the NCDRC clearly missed the point that in the present case the accident was caused as a result of a portion of the road having given way. The accident was in the nature of a landslide, as a result of which the vehicle fell into a deep ditch occasioning the death of the operator and the helper and a total loss of the machine.11. The situation, in the present case, therefore, did not involve loss or damage due to the overturning of the vehicle. Consequently, even if, for the sake of argument, the submission of the insurer that the vehicle was being used as a tool were to be accepted, it is impossible to subscribe to the findings of fact of the NCDRC. The damage or loss was not as a result of the overturning of the vehicle, but was plainly due to the collapsing of the road, which resulted in the vehicle falling into a deep ditch in a hilly terrain of the State of Uttarakhand.In a judgment of a three judge Bench in Lourdes Society Snehanjali Girls Hostel v H&R Johnson (India) Ltd (2016) 8 SCC 286, this Court held that the NCDRC should not have interfered with the concurrent findings of fact in the judgments impugned before it, particularly having regard to the nature of jurisdiction conferred upon it by Section 21 of the Consumer Protection Act 1986:17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons. […]The limited ambit of the revisional jurisdiction of the NCDRC has been reiterated in subsequent decisions of this Court, most recently in Sunil Kumar Maity v State Bank of India (Civil Appeal 432 of 2022 (Arising out of SLP(C) 21711 of 2019).
|
NARENDRA KUMAR TIWARI Vs. THE STATE OF JHARKHAND | and continuing with them indefinitely. In fact, in paragraph 49 of the Report, it was pointed out that the rule of law requires appointments to be made in a constitutional manner and the State cannot be permitted to perpetuate an irregularity in the matter of public employment which would adversely affect those who could be employed in terms of the constitutional scheme. It is for this reason that the concept of a one-time measure and a cut-off date was introduced in the hope and expectation that the State would cease and desist from making irregular or illegal appointments and instead make appointments on a regular basis.7. The concept of a one-time measure was further explained in Kesari in paragraphs 9, 10 and 11 of the Report which read as follows: "9. The term “one-time measure” has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.10. At the end of six months from the date of decision in Umadevi (3), cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one- time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3), will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six- month period mentioned in para 53 of Umadevi (3) has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi (3), but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3), the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3), are so considered.11. The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) as a one-time measure.”8. The purpose and intent of the decision in Umadevi (3) was therefore two-fold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid.9. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15 th November, 2000 and the cut-off date was fixed as 10 th April, 2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.10. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise – the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance. | 1[ds]5. Having heard learned counsel for the parties and having considered the decision of the Constitution Bench in Umadevi (3) as well as the subsequent decision of this Court explaining Umadevi (3) in State of Karnataka and Ors. v. M.L. Kesari and Ors., we are of the view that the High Court has erred in taking an impractical view of the directions in Umadevi (3) as well as its consideration in Kesari.6. The decision in Umadevi (3) was intended to put a full stop to the somewhat pernicious practice of irregularly or illegally appointing daily wage workers and continuing with them indefinitely. In fact, in paragraph 49 of the Report, it was pointed out that the rule of law requires appointments to be made in a constitutional manner and the State cannot be permitted to perpetuate an irregularity in the matter of public employment which would adversely affect those who could be employed in terms of the constitutional scheme. It is for this reason that the concept of ameasure and adate was introduced in the hope and expectation that the State would cease and desist from making irregular or illegal appointments and instead make appointments on a regular basis.The purpose and intent of the decision in Umadevi (3) was thereforenamely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid.9. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15 th November, 2000 and thedate was fixed as 10 th April, 2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.10. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise – the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance. | 1 | 1,649 | 552 | ### 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:
and continuing with them indefinitely. In fact, in paragraph 49 of the Report, it was pointed out that the rule of law requires appointments to be made in a constitutional manner and the State cannot be permitted to perpetuate an irregularity in the matter of public employment which would adversely affect those who could be employed in terms of the constitutional scheme. It is for this reason that the concept of a one-time measure and a cut-off date was introduced in the hope and expectation that the State would cease and desist from making irregular or illegal appointments and instead make appointments on a regular basis.7. The concept of a one-time measure was further explained in Kesari in paragraphs 9, 10 and 11 of the Report which read as follows: "9. The term “one-time measure” has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.10. At the end of six months from the date of decision in Umadevi (3), cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one- time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3), will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six- month period mentioned in para 53 of Umadevi (3) has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi (3), but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3), the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3), are so considered.11. The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) as a one-time measure.”8. The purpose and intent of the decision in Umadevi (3) was therefore two-fold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid.9. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15 th November, 2000 and the cut-off date was fixed as 10 th April, 2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.10. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise – the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.
### Response:
1
### Explanation:
5. Having heard learned counsel for the parties and having considered the decision of the Constitution Bench in Umadevi (3) as well as the subsequent decision of this Court explaining Umadevi (3) in State of Karnataka and Ors. v. M.L. Kesari and Ors., we are of the view that the High Court has erred in taking an impractical view of the directions in Umadevi (3) as well as its consideration in Kesari.6. The decision in Umadevi (3) was intended to put a full stop to the somewhat pernicious practice of irregularly or illegally appointing daily wage workers and continuing with them indefinitely. In fact, in paragraph 49 of the Report, it was pointed out that the rule of law requires appointments to be made in a constitutional manner and the State cannot be permitted to perpetuate an irregularity in the matter of public employment which would adversely affect those who could be employed in terms of the constitutional scheme. It is for this reason that the concept of ameasure and adate was introduced in the hope and expectation that the State would cease and desist from making irregular or illegal appointments and instead make appointments on a regular basis.The purpose and intent of the decision in Umadevi (3) was thereforenamely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid.9. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15 th November, 2000 and thedate was fixed as 10 th April, 2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.10. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise – the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.
|
BAJAJ AUTO LIMITED Vs. UNION OF INDIA | was made clear that in respect of all the three taxes, the surcharge collected along with the tax will bear the same character of respective taxes to which surcharge was appended and was to be governed by the respective enactments under which education cess in the form of surcharge is levied and collected. 16. Apparently, when at the time of collection, surcharge has taken the character of parent levy, whatever may be the object behind it, it becomes subject to the provision relating to the excise duty applicable to it in the manner of collecting the same obligation of the tax payer in respect of its discharge as well as exemption concession by way of rebate attached with such levies. This aspect has been made clear by combined reading of sub-sections (1), (2) and (3) of Section 93. (emphasis supplied) This Court gave its imprimatur to the aforesaid judgment of the Rajasthan High Court, in para 24 of the judgment in SRD Nutrients Pvt. Ltd 2007 SCC OnLine Raj 365 :: (2007) 216 ELT 16. 16. The real bone of contention which survives for consideration is the NCCD. The reason for this is that while the two cesses discussed aforesaid were in the nature of levy on the excise duty payable, the NCCD is levied on the product itself, as per Section 136 of the Finance Act, 2001. It is this aspect, inter alia, which was canvassed by the Department to persuade this Court to take a different view from the one taken qua the other two cesses. 17. On behalf of the appellant, Mr. Mukul Rohatgi and Mr. Arvind Datar, learned Senior Advocates sought to persuade us to apply the same principles qua NCCD as the other two cesses and, thus, go along with the view taken in SRD Nutrients Pvt. Ltd., 2007 SCC OnLine Raj 365 :: (2007) 216 ELT 16 even insofar as NCCD is concerned. 18. On the other hand, on behalf of the Department, Ms. Nisha Bagchi, Advocate sought to contend otherwise by seeking to point out the difference in the nature of incidence, since NCCD was to be calculated on the value of the product and not on the value of the excise duty payable. 19. We may note that in terms of the impugned judgment, one principle which clearly emerges, and over which there is no dispute before us, also, is that exemption notifications, like the one in question must be read in a manner that give them a liberal interpretation, provided that no violence is done to the language employed. The rationale for the same is well enunciated in Novopan India Ltd., Hyderabad v. CCE and Customs, Hyderabad, 1994 Supp (3) SCC 606 apart from in other judicial pronouncements. In such cases, it is not as if the principle of strict interpretation of tax law has been given a complete go by, but that rule of interpretation would apply at a different stage, i.e., to determine whether the exemption is applicable to the assessee or not. Once such exemption is indeed found to be applicable to the assessee in question, a liberal approach is to be adopted by the Court in construing the language, such as to allow the benefit to be reaped by the beneficiary in question (Union of India v. Wood Papers ltd (1990) 4 SCC 256 20. We may notice that the primary reasoning contained in the impugned order is common for the three cesses, i.e., NCCD; Education Cess and Secondary & Higher Education Cess. These were in the nature of surcharges levied in other Acts, which have not been specifically excluded under the Notification in question. That reasoning does not prevail, more so because of the judgment in SRD Nutrients Pvt. Ltd. (1990) 4 SCC 256 The question, thus, is whether, even though the NCCD is in the nature of an excise duty, its incidence being on the product, rather than on the value of the excise duty, that itself would make any difference to the applicability of the NCCD to excise exempt units. 21. On a proper appreciation of the judicial pronouncement in SRD Nutrients Pvt. Ltd., (1990) 4 SCC 256 we are not inclined to take a different view from the one taken for Education Cess and Secondary & Higher Education Cess, even while considering the issue of NCCD. 22. We may notice that this Court, in SRD Nutrients Pvt. Ltd.(1990) 4 SCC 256 gave its imprimatur to the view expressed by the Rajasthan High Court in Banswara Syntex Ltd. (1990) 4 SCC 256 The rationale is that while there may be surcharges under different financial enactments to provide the Government with revenue for specified purposes, the same have been notified as leviable in the nature of a particular kind of duty. In the case of NCCD, it is in the nature of an excise duty. It has to bear the same character as those respective taxes to which the surcharge is appended. NCCD will not cease to be an excise duty, but is the same as an excise duty, even if it is levied on the product. Thus, when NCCD, at the time of collection, takes the character of a duty on the product, whatever may be the rationale behind it, it is also subject to the provisions relating to excise duty, applicable to it in the manner of collection as well as the obligation of the taxpayer to discharge the duty. Once the excise duty is exempted, NCCD, levied as an excise duty cannot partake a different character and, thus, would be entitled to the benefit of the exemption notification. The exemption notification also states that the exemption is from the whole of the duty of excise or additional duty of excise. We may also note that the exemption itself is for a period of ten years from the date of commercial production of the unit. 23. We are, thus, of the view that the appellant would not be liable to pay the NCCD. | 1[ds]12. The controversy before us is now in a narrow compass, on account of the subsequent judicial pronouncement in SRD Nutrients Pvt. Ltd. v. Commissioner of Central Excise, Guwahati (2018) 1 SCC. The issue of the Education Cess and the Secondary & Higher Education Cess, in our view, is covered against the Department in view of this judgment and that is how, also, the Department appears to have understood now, in view of the written synopsis placed before us13. In the facts of that case, there was an initiative for development of industries in the North-Eastern States of Assam, Tripura, Meghalaya, Mizoram, Manipur, Nagaland, Arunachal Pradesh, etc. A Notification exempting goods from payment of excise duties was issued in respect of those States. Education Cess and Secondary & Higher Education Cess, as imposed under the Finance Acts of 2004 and 2007, respectively were also sought to be levied on the appellant therein. The gravamen of the reasoning of this Court is that since these cesses are a surcharge levied and collected on the total value of the excise duty, and the excise duty itself is exempted, there cannot be any question of any recovery of these cesses, as the substratum does not exist. Not only that, this Court also took into account how the Department itself had viewed the situation regarding Education Cess and Secondary & Higher Education Cess, which are payable as surcharge on the excise duty, once the excise duty is exempted16. The real bone of contention which survives for consideration is the NCCD. The reason for this is that while the two cesses discussed aforesaid were in the nature of levy on the excise duty payable, the NCCD is levied on the product itself, as per Section 136 of the Finance Act, 2001. It is this aspect, inter alia, which was canvassed by the Department to persuade this Court to take a different view from the one taken qua the other two cesses17. On behalf of the appellant, Mr. Mukul Rohatgi and Mr. Arvind Datar, learned Senior Advocates sought to persuade us to apply the same principles qua NCCD as the other two cesses and, thus, go along with the view taken in SRD Nutrients Pvt. Ltd., 2007 SCC OnLine Raj 365 :: (2007) 216 ELT16 even insofar as NCCD is concerned18. On the other hand, on behalf of the Department, Ms. Nisha Bagchi, Advocate sought to contend otherwise by seeking to point out the difference in the nature of incidence, since NCCD was to be calculated on the value of the product and not on the value of the excise duty payable19. We may note that in terms of the impugned judgment, one principle which clearly emerges, and over which there is no dispute before us, also, is that exemption notifications, like the one in question must be read in a manner that give them a liberal interpretation, provided that no violence is done to the language employed. The rationale for the same is well enunciated in Novopan India Ltd., Hyderabad v. CCE and Customs, Hyderabad, 1994 Supp (3) SCC 606apart from in other judicial pronouncements. In such cases, it is not as if the principle of strict interpretation of tax law has been given a complete go by, but that rule of interpretation would apply at a different stage, i.e., to determine whether the exemption is applicable to the assessee or not. Once such exemption is indeed found to be applicable to the assessee in question, a liberal approach is to be adopted by the Court in construing the language, such as to allow the benefit to be reaped by the beneficiary in question (Union of India v. Wood Papers ltd (1990) 4 SCC 256 20. We may notice that the primary reasoning contained in the impugned order is common for the three cesses, i.e., NCCD; Education Cess and Secondary & Higher Education Cess. These were in the nature of surcharges levied in other Acts, which have not been specifically excluded under the Notification in question. That reasoning does not prevail, more so because of the judgment in SRD Nutrients Pvt. Ltd. (1990) 4 SCC 256 21. On a proper appreciation of the judicial pronouncement in SRD Nutrients Pvt. Ltd., (1990) 4 SCC 256 we are not inclined to take a different view from the one taken for Education Cess and Secondary & Higher Education Cess, even while considering the issue of NCCD22. We may notice that this Court, in SRD Nutrients Pvt. Ltd.(1990) 4 SCC 256 gave its imprimatur to the view expressed by the Rajasthan High Court in Banswara Syntex Ltd. (1990) 4 SCC 256 The rationale is that while there may be surcharges underdifferent financial enactments to provide the Government with revenue for specified purposes, the same have been notified as leviable in the nature of a particular kind of duty. In the case of NCCD, it is in the nature of an excise duty. It has to bear the same character as those respective taxes to which the surcharge is appended. NCCD will not cease to be an excise duty, but is the same as an excise duty, even if it is levied on the product. Thus, when NCCD, at the time of collection, takes the character of a duty on the product, whatever may be the rationale behind it, it is also subject to the provisions relating to excise duty, applicable to it in the manner of collection as well as the obligation of the taxpayer to discharge the duty. Once the excise duty is exempted, NCCD, levied as an excise duty cannot partake a different character and, thus, would be entitled to the benefit of the exemption notification. The exemption notification also states that the exemption is from the whole of the duty of excise or additional duty of excise. We may also note that the exemption itself is for a period of ten years from the date of commercial production of the unit23. We are, thus, of the view that the appellant would not be liable to pay the NCCD. | 1 | 3,603 | 1,148 | ### Instruction:
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was made clear that in respect of all the three taxes, the surcharge collected along with the tax will bear the same character of respective taxes to which surcharge was appended and was to be governed by the respective enactments under which education cess in the form of surcharge is levied and collected. 16. Apparently, when at the time of collection, surcharge has taken the character of parent levy, whatever may be the object behind it, it becomes subject to the provision relating to the excise duty applicable to it in the manner of collecting the same obligation of the tax payer in respect of its discharge as well as exemption concession by way of rebate attached with such levies. This aspect has been made clear by combined reading of sub-sections (1), (2) and (3) of Section 93. (emphasis supplied) This Court gave its imprimatur to the aforesaid judgment of the Rajasthan High Court, in para 24 of the judgment in SRD Nutrients Pvt. Ltd 2007 SCC OnLine Raj 365 :: (2007) 216 ELT 16. 16. The real bone of contention which survives for consideration is the NCCD. The reason for this is that while the two cesses discussed aforesaid were in the nature of levy on the excise duty payable, the NCCD is levied on the product itself, as per Section 136 of the Finance Act, 2001. It is this aspect, inter alia, which was canvassed by the Department to persuade this Court to take a different view from the one taken qua the other two cesses. 17. On behalf of the appellant, Mr. Mukul Rohatgi and Mr. Arvind Datar, learned Senior Advocates sought to persuade us to apply the same principles qua NCCD as the other two cesses and, thus, go along with the view taken in SRD Nutrients Pvt. Ltd., 2007 SCC OnLine Raj 365 :: (2007) 216 ELT 16 even insofar as NCCD is concerned. 18. On the other hand, on behalf of the Department, Ms. Nisha Bagchi, Advocate sought to contend otherwise by seeking to point out the difference in the nature of incidence, since NCCD was to be calculated on the value of the product and not on the value of the excise duty payable. 19. We may note that in terms of the impugned judgment, one principle which clearly emerges, and over which there is no dispute before us, also, is that exemption notifications, like the one in question must be read in a manner that give them a liberal interpretation, provided that no violence is done to the language employed. The rationale for the same is well enunciated in Novopan India Ltd., Hyderabad v. CCE and Customs, Hyderabad, 1994 Supp (3) SCC 606 apart from in other judicial pronouncements. In such cases, it is not as if the principle of strict interpretation of tax law has been given a complete go by, but that rule of interpretation would apply at a different stage, i.e., to determine whether the exemption is applicable to the assessee or not. Once such exemption is indeed found to be applicable to the assessee in question, a liberal approach is to be adopted by the Court in construing the language, such as to allow the benefit to be reaped by the beneficiary in question (Union of India v. Wood Papers ltd (1990) 4 SCC 256 20. We may notice that the primary reasoning contained in the impugned order is common for the three cesses, i.e., NCCD; Education Cess and Secondary & Higher Education Cess. These were in the nature of surcharges levied in other Acts, which have not been specifically excluded under the Notification in question. That reasoning does not prevail, more so because of the judgment in SRD Nutrients Pvt. Ltd. (1990) 4 SCC 256 The question, thus, is whether, even though the NCCD is in the nature of an excise duty, its incidence being on the product, rather than on the value of the excise duty, that itself would make any difference to the applicability of the NCCD to excise exempt units. 21. On a proper appreciation of the judicial pronouncement in SRD Nutrients Pvt. Ltd., (1990) 4 SCC 256 we are not inclined to take a different view from the one taken for Education Cess and Secondary & Higher Education Cess, even while considering the issue of NCCD. 22. We may notice that this Court, in SRD Nutrients Pvt. Ltd.(1990) 4 SCC 256 gave its imprimatur to the view expressed by the Rajasthan High Court in Banswara Syntex Ltd. (1990) 4 SCC 256 The rationale is that while there may be surcharges under different financial enactments to provide the Government with revenue for specified purposes, the same have been notified as leviable in the nature of a particular kind of duty. In the case of NCCD, it is in the nature of an excise duty. It has to bear the same character as those respective taxes to which the surcharge is appended. NCCD will not cease to be an excise duty, but is the same as an excise duty, even if it is levied on the product. Thus, when NCCD, at the time of collection, takes the character of a duty on the product, whatever may be the rationale behind it, it is also subject to the provisions relating to excise duty, applicable to it in the manner of collection as well as the obligation of the taxpayer to discharge the duty. Once the excise duty is exempted, NCCD, levied as an excise duty cannot partake a different character and, thus, would be entitled to the benefit of the exemption notification. The exemption notification also states that the exemption is from the whole of the duty of excise or additional duty of excise. We may also note that the exemption itself is for a period of ten years from the date of commercial production of the unit. 23. We are, thus, of the view that the appellant would not be liable to pay the NCCD.
### Response:
1
### Explanation:
account of the subsequent judicial pronouncement in SRD Nutrients Pvt. Ltd. v. Commissioner of Central Excise, Guwahati (2018) 1 SCC. The issue of the Education Cess and the Secondary & Higher Education Cess, in our view, is covered against the Department in view of this judgment and that is how, also, the Department appears to have understood now, in view of the written synopsis placed before us13. In the facts of that case, there was an initiative for development of industries in the North-Eastern States of Assam, Tripura, Meghalaya, Mizoram, Manipur, Nagaland, Arunachal Pradesh, etc. A Notification exempting goods from payment of excise duties was issued in respect of those States. Education Cess and Secondary & Higher Education Cess, as imposed under the Finance Acts of 2004 and 2007, respectively were also sought to be levied on the appellant therein. The gravamen of the reasoning of this Court is that since these cesses are a surcharge levied and collected on the total value of the excise duty, and the excise duty itself is exempted, there cannot be any question of any recovery of these cesses, as the substratum does not exist. Not only that, this Court also took into account how the Department itself had viewed the situation regarding Education Cess and Secondary & Higher Education Cess, which are payable as surcharge on the excise duty, once the excise duty is exempted16. The real bone of contention which survives for consideration is the NCCD. The reason for this is that while the two cesses discussed aforesaid were in the nature of levy on the excise duty payable, the NCCD is levied on the product itself, as per Section 136 of the Finance Act, 2001. It is this aspect, inter alia, which was canvassed by the Department to persuade this Court to take a different view from the one taken qua the other two cesses17. On behalf of the appellant, Mr. Mukul Rohatgi and Mr. Arvind Datar, learned Senior Advocates sought to persuade us to apply the same principles qua NCCD as the other two cesses and, thus, go along with the view taken in SRD Nutrients Pvt. Ltd., 2007 SCC OnLine Raj 365 :: (2007) 216 ELT16 even insofar as NCCD is concerned18. On the other hand, on behalf of the Department, Ms. Nisha Bagchi, Advocate sought to contend otherwise by seeking to point out the difference in the nature of incidence, since NCCD was to be calculated on the value of the product and not on the value of the excise duty payable19. We may note that in terms of the impugned judgment, one principle which clearly emerges, and over which there is no dispute before us, also, is that exemption notifications, like the one in question must be read in a manner that give them a liberal interpretation, provided that no violence is done to the language employed. The rationale for the same is well enunciated in Novopan India Ltd., Hyderabad v. CCE and Customs, Hyderabad, 1994 Supp (3) SCC 606apart from in other judicial pronouncements. In such cases, it is not as if the principle of strict interpretation of tax law has been given a complete go by, but that rule of interpretation would apply at a different stage, i.e., to determine whether the exemption is applicable to the assessee or not. Once such exemption is indeed found to be applicable to the assessee in question, a liberal approach is to be adopted by the Court in construing the language, such as to allow the benefit to be reaped by the beneficiary in question (Union of India v. Wood Papers ltd (1990) 4 SCC 256 20. We may notice that the primary reasoning contained in the impugned order is common for the three cesses, i.e., NCCD; Education Cess and Secondary & Higher Education Cess. These were in the nature of surcharges levied in other Acts, which have not been specifically excluded under the Notification in question. That reasoning does not prevail, more so because of the judgment in SRD Nutrients Pvt. Ltd. (1990) 4 SCC 256 21. On a proper appreciation of the judicial pronouncement in SRD Nutrients Pvt. Ltd., (1990) 4 SCC 256 we are not inclined to take a different view from the one taken for Education Cess and Secondary & Higher Education Cess, even while considering the issue of NCCD22. We may notice that this Court, in SRD Nutrients Pvt. Ltd.(1990) 4 SCC 256 gave its imprimatur to the view expressed by the Rajasthan High Court in Banswara Syntex Ltd. (1990) 4 SCC 256 The rationale is that while there may be surcharges underdifferent financial enactments to provide the Government with revenue for specified purposes, the same have been notified as leviable in the nature of a particular kind of duty. In the case of NCCD, it is in the nature of an excise duty. It has to bear the same character as those respective taxes to which the surcharge is appended. NCCD will not cease to be an excise duty, but is the same as an excise duty, even if it is levied on the product. Thus, when NCCD, at the time of collection, takes the character of a duty on the product, whatever may be the rationale behind it, it is also subject to the provisions relating to excise duty, applicable to it in the manner of collection as well as the obligation of the taxpayer to discharge the duty. Once the excise duty is exempted, NCCD, levied as an excise duty cannot partake a different character and, thus, would be entitled to the benefit of the exemption notification. The exemption notification also states that the exemption is from the whole of the duty of excise or additional duty of excise. We may also note that the exemption itself is for a period of ten years from the date of commercial production of the unit23. We are, thus, of the view that the appellant would not be liable to pay the NCCD.
|
Bachan Singh and Others Vs. State of Punjab and Others | 1 and 2 who were the contractors, cut 4400 marked trees within that period which expired on April 15, 1978. As the felling of all the marked trees could not be completed within this very short period specified in the permit, the petitioners applied for extension of time, but received no reply.13. Certain documents from the correspondence which passed from the Chief Conservator and the Deputy Secretary to the Government in Punjab Government, which have been annexed to the petition, show that approval for making further trees for sale in Mirzapur was also sanctioned. The petitioners made further representation for extension of the time for felling and removing the remaining trees, but nothing came out of it.14. According to the averments in para 22 of the petition, on December 12, 1978, Shri Balwinder Singh, Agriculture and Forest Minister, Punjab, along with some officers of the Forest Department went to village Mirzapur, summoned the right-holders of that village in the Rest House and advised them that they should not press for the issuance of a permit and allow the agreement with petitioners 1 and 2 to lapse as the same could be enforced only within the time stipulated in the agreement deed, expiring on March, 31, 1979. The Minister, it is alleged, further suggested to the right-holders to sell their trees to Shri Bhagat Singh son of S. Lachhman Singh, Minister in Haryana State, who, according to the Minister, would give them more money for their trees. The Minister further promised that if the right-holders enter into an agreement for sale of trees with the said Bhagat Singh, he would get the permit issued immediately. The right-holders, however, did not agree and informed the Minister that they had already received the entire sale consideration from petitioners 1 and 2 and they would not dishonour the agreement. It is further alleged that the Minister left the place threatening the right-holders that he would see how they would get the permit to sell. It is also stated that this Bhagat Singh was a rival bidder in an auction of Bhojpalara Forest (Haryana) and competed with Shri Ranjit Singh, brother of petitioners 1 and 2, on October 10, 1978. The said Ranjit Singh, however, outbid Bhagat Singh at that auction. For this reason, it is alleged, Bhagat Singh had a grudge against petitioners 1 and 2. The State has controverted some of these allegations.15. In his counter-affidavit, Shri Balwinder Singh, Forest Minister admitted that he had visited village Mirzapur on December 12, 1978, but denied the rest of the allegations.16. It is further alleged that on January 20, 1979, the petitioners made a representation to the Chief Minister, complaining of delay in not issuing the permit, though the felling season was running out.17. Ultimately on February 14, 1979, the petitioners moved the High Court by a petition under Article 226 of the Constitution, praying for issuance of a writ, order or direction in the nature of mandamus requiring the respondents to issue a final permit in favour of the petitioners. The High Court issued notice of motion to the respondents for February 27, 1979. On that date, counsel for the respondents appeared and prayed for time to file a counter-affidavit. At his request, the respondents were granted time to file the counter-affidavit by March 15, 1979. Before that date, however, on March 9, 1979, the Punjab Government issued a notification under Section 5 of the said Act prohibiting for 20 years the cutting of trees or timber or brush wood for any purpose from village Mirzapur, only. Thereupon, the petitioners amended the writ petition and challenged this notification, also, inter alia, on the ground that it amounted to an unreasonable restriction on their Fundamental Right under Article 19(1)(g) of the Constitution.18. It is contended by Mr. F. S. Nariman, appearing for the appellants, that the time for felling trees specified in the permit has been validly issued by the respondents to the petitioners and since time for felling the trees was not the essence of the matter, the permit already issued for felling 7165 trees, in any case ought to have been honoured, and the time of the permit extended. Petitioners had already paid the entire sale consideration to the right-holders; that the impugned notification issued by the respondents during the pendency of the writ petition suffered from arbitrariness and un-reasonableness because the felling of trees in the area of village Mirzapur had remained prohibited for a period of more than 35 years under successive notifications issued under the said Act, and the absolute ban on cutting trees and timber for a period of another 20 years was manifestly an unreasonable restriction, offending the petitioners Fundamental Right under Article 19(1)(g) of the Constitution. further submitted that he does not want to elaborate or develop his arguments further in this Court and that his purpose of enumerating all these facts and making these short submissions is that important questions of law based on undisputed facts had arisen for decision in this case and in the circumstances, it was not fair and proper for the High Court to summarily dismiss his writ petition without dealing with the question raised on merits. It is maintained that since the felling season is of short duration and the time granted by the right-holders under the agreement to petitioners 1 and 2 for completing the felling and removal of trees was about to expire shortly, the remedy by way of a suit was not an efficacious and speedy remedy.19. We have heard the arguments of Shri Hardev Singh, also. Without giving any finding on the questions raised or the reliefs sought in the writ petition, we think, that important questions of law had been raised in this case which could properly be determined by the High Court in the exercise of its special jurisdiction under Article 226 of the Constitution.20. It was, therefore, not proper for the High Court to dispose of this matter in the summary manner, it did. | 1[ds]Without giving any finding on the questions raised or the reliefs sought in the writ petition, we think, that important questions of law had been raised in this case which could properly be determined by the High Court in the exercise of its special jurisdiction under Article 226 of the Constitution.20. It was, therefore, not proper for the High Court to dispose of this matter in the summary manner, it did. | 1 | 2,223 | 82 | ### Instruction:
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1 and 2 who were the contractors, cut 4400 marked trees within that period which expired on April 15, 1978. As the felling of all the marked trees could not be completed within this very short period specified in the permit, the petitioners applied for extension of time, but received no reply.13. Certain documents from the correspondence which passed from the Chief Conservator and the Deputy Secretary to the Government in Punjab Government, which have been annexed to the petition, show that approval for making further trees for sale in Mirzapur was also sanctioned. The petitioners made further representation for extension of the time for felling and removing the remaining trees, but nothing came out of it.14. According to the averments in para 22 of the petition, on December 12, 1978, Shri Balwinder Singh, Agriculture and Forest Minister, Punjab, along with some officers of the Forest Department went to village Mirzapur, summoned the right-holders of that village in the Rest House and advised them that they should not press for the issuance of a permit and allow the agreement with petitioners 1 and 2 to lapse as the same could be enforced only within the time stipulated in the agreement deed, expiring on March, 31, 1979. The Minister, it is alleged, further suggested to the right-holders to sell their trees to Shri Bhagat Singh son of S. Lachhman Singh, Minister in Haryana State, who, according to the Minister, would give them more money for their trees. The Minister further promised that if the right-holders enter into an agreement for sale of trees with the said Bhagat Singh, he would get the permit issued immediately. The right-holders, however, did not agree and informed the Minister that they had already received the entire sale consideration from petitioners 1 and 2 and they would not dishonour the agreement. It is further alleged that the Minister left the place threatening the right-holders that he would see how they would get the permit to sell. It is also stated that this Bhagat Singh was a rival bidder in an auction of Bhojpalara Forest (Haryana) and competed with Shri Ranjit Singh, brother of petitioners 1 and 2, on October 10, 1978. The said Ranjit Singh, however, outbid Bhagat Singh at that auction. For this reason, it is alleged, Bhagat Singh had a grudge against petitioners 1 and 2. The State has controverted some of these allegations.15. In his counter-affidavit, Shri Balwinder Singh, Forest Minister admitted that he had visited village Mirzapur on December 12, 1978, but denied the rest of the allegations.16. It is further alleged that on January 20, 1979, the petitioners made a representation to the Chief Minister, complaining of delay in not issuing the permit, though the felling season was running out.17. Ultimately on February 14, 1979, the petitioners moved the High Court by a petition under Article 226 of the Constitution, praying for issuance of a writ, order or direction in the nature of mandamus requiring the respondents to issue a final permit in favour of the petitioners. The High Court issued notice of motion to the respondents for February 27, 1979. On that date, counsel for the respondents appeared and prayed for time to file a counter-affidavit. At his request, the respondents were granted time to file the counter-affidavit by March 15, 1979. Before that date, however, on March 9, 1979, the Punjab Government issued a notification under Section 5 of the said Act prohibiting for 20 years the cutting of trees or timber or brush wood for any purpose from village Mirzapur, only. Thereupon, the petitioners amended the writ petition and challenged this notification, also, inter alia, on the ground that it amounted to an unreasonable restriction on their Fundamental Right under Article 19(1)(g) of the Constitution.18. It is contended by Mr. F. S. Nariman, appearing for the appellants, that the time for felling trees specified in the permit has been validly issued by the respondents to the petitioners and since time for felling the trees was not the essence of the matter, the permit already issued for felling 7165 trees, in any case ought to have been honoured, and the time of the permit extended. Petitioners had already paid the entire sale consideration to the right-holders; that the impugned notification issued by the respondents during the pendency of the writ petition suffered from arbitrariness and un-reasonableness because the felling of trees in the area of village Mirzapur had remained prohibited for a period of more than 35 years under successive notifications issued under the said Act, and the absolute ban on cutting trees and timber for a period of another 20 years was manifestly an unreasonable restriction, offending the petitioners Fundamental Right under Article 19(1)(g) of the Constitution. further submitted that he does not want to elaborate or develop his arguments further in this Court and that his purpose of enumerating all these facts and making these short submissions is that important questions of law based on undisputed facts had arisen for decision in this case and in the circumstances, it was not fair and proper for the High Court to summarily dismiss his writ petition without dealing with the question raised on merits. It is maintained that since the felling season is of short duration and the time granted by the right-holders under the agreement to petitioners 1 and 2 for completing the felling and removal of trees was about to expire shortly, the remedy by way of a suit was not an efficacious and speedy remedy.19. We have heard the arguments of Shri Hardev Singh, also. Without giving any finding on the questions raised or the reliefs sought in the writ petition, we think, that important questions of law had been raised in this case which could properly be determined by the High Court in the exercise of its special jurisdiction under Article 226 of the Constitution.20. It was, therefore, not proper for the High Court to dispose of this matter in the summary manner, it did.
### Response:
1
### Explanation:
Without giving any finding on the questions raised or the reliefs sought in the writ petition, we think, that important questions of law had been raised in this case which could properly be determined by the High Court in the exercise of its special jurisdiction under Article 226 of the Constitution.20. It was, therefore, not proper for the High Court to dispose of this matter in the summary manner, it did.
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RAMESH SANKA Vs. UNION OF INDIA | No.12 – Company, through their Directors and employees has committed several financial irregularities in their business and financial dealing with many Companies, firms and individuals who are having their work places in India and abroad contrary to and in contravention of the provisions of Several Acts/ Rules / Regulations which have gone unnoticed despite the writ petitioner had sent several complaints/representations to various statutory authorities in this behalf.7. According to the writ petitioner, all such dealings/activities of Respondent No.12 – Company, which he has highlighted in the writ petition has not only caused heavy loss to the public exchequer but also rendered the persons, who indulged in these activities, liable to face prosecution for commission of several cognizable offences punishable under the Acts.8. It is essentially with these background facts; the writ petitioner has made allegations in the writ petition. He has also filed some documents to show prima facie that the prayer made by him in his writ petition deserves consideration.9. On 11.07.2018, this Court issued notice of this writ petition confining it to the official respondents namely, respondent Nos.7 to 11. These respondents have filed the status report in a sealed cover. One officialrespondent has filed the affidavit.10. Respondent No.12 – Company, however, in the meantime entered suo motu appearance and has filed IA No.104447 of 2018 praying therein for dismissal of the writ petition on legal as well as on factual grounds. 11. In substance, according to respondent No.12 – Company, the writ petition filed by the writ petitioner under Article 32 of the Constitution deserves dismissal on the groundsinter aliathatitis not abona fide petition. It is contended that this writ petition is filed by a former employee of respondent No.12 – Company to score his personal issues and the differencesqua respondent No.12 – Company, for which some civil suits are pending between the parties in the Civil Court: that the writ petitioner has suppressed several material facts in the writ petition including the fact of pendency of the Civil Suits between them: that the writ petition is filed with an ulterior motive at the behest of others only to tarnish the image of respondent No.12 – Company, in the market: that the writ petition does not involve any issue of infraction/violation of any fundamental rights, guaranteed to the citizens under the Constitution of India, of the petitioners. The Respondent No.12 – Company, has denied all such allegations made against them by the writ petitioner as being baseless. 12. The writ petitioner has countered the averments madeintheaforesaidIAby placingreliance on the averments made in the writ petition contending that there has been no suppression of the material facts as alleged by respondent No.12 – Company. 13. In the meantime several persons /organizations havesuo motufiled the applications being I.A. Nos.3739/2018, 17628485/2018, D.No.110020/2018, 160094/2018, 171501/2018, 160094/2018, 163098/2018, D. No.17594347/2018, 144019/2018, 81895/2018, 165472/2018, 163874/2018, 157884/2018, 115735/2018 and 2974/2019, seeking therein various kinds of reliefs for them individually and collectively against respondent No.12 – Company, in relation to their independent dealings which they claimed to have had with respondent No.12 – Company and which according to them are not till date fructified and given to them by respondent No.12 – Company, as agreed. 14. We have heard all the learned counsel for the parties in support of their case. 15. Having heard the learned counsel for the parties and keeping in view the law laid down by this Court in the cases reported in State of Uttaranchal vs. Balwant Singh Chaufal & Ors. [2010(3) SCC 402], K.D. Sharma vs. Steel Authority of India Ltd. & Ors. [2008(12) SCC 481 and lastly inArun Kumar Agrawalvs.Union of India & Ors. [2014(2) SCCC 609], we are not inclined to grant any relief in this writ petition.16. At the outset, we find that the writ petitioner has not claimed any relief in person qua respondent No.12 – Company, in this writ petition. Even otherwise, no writ lies under Article 32 of the Constitution at the instance of any employee or the employer for claiming enforcement of any personal contractual rights inter se the employee and his employer.17. If the writ petitioner has any personal grievance in relation to any of his contractual personal rights flowing from any service conditions or any other agreement with therespondent No.12 – Company, his legal remedy lies in filing Civil Suit or take recourse to any other civil law remedy for adjudication and enforcement of his rightsquarespondent No.12 – Company or anyone claiming through them as the case may be. The writ petition under Article 32 of the Constitution is not the remedy for agitating any such grievance.18. It is not in dispute that the parties are already prosecuting their grievances against each other in Civil Court in their respective civil suits filed by them against each other. If that be the position, the same have to be pursued by them in accordance with law against each other.19. So far as the raising of other grievances as set out supraby the writ petitioner against the other respondents are concerned, suffice it to say, this court by order dated 11.07.2018had issued notice tothe official respondents Nos.7 to 11. These respondents pursuant to the notice issued have filed their respective status report in relation to the inquiries, which is being undertaken by them in their respective jurisdiction. We have perused the same20. Needless to say depending upon the outcome of the inquiry once it is completed by the respective official respondents in their exclusive jurisdiction under various Acts, the appropriate action as provided in law will follow against all those who are found guilty. 21. Before parting, we make it clear that we have not expressed any opinion on several factual issues alleged 9 and denied by all the parties against each other in this writ petition and in respective IAs. 22. This order, therefore, will not influence any authority or the Court or ongoing inquiry or proceedings while dealing with any issue.The same has to be dealt with uninfluenced by this order. | 0[ds]15. Having heard the learned counsel for the parties and keeping in view the law laid down by this Court in the cases reported in State of Uttaranchal vs. Balwant Singh Chaufal & Ors. [2010(3) SCC 402], K.D. Sharma vs. Steel Authority of India Ltd. & Ors. [2008(12) SCC 481 and lastly inArun Kumar Agrawalvs.Union of India & Ors. [2014(2) SCCC 609], we are not inclined to grant any relief in this writ petition.16. At the outset, we find that the writ petitioner has not claimed any relief in person qua respondent No.12 – Company, in this writ petition. Even otherwise, no writ lies under Article 32 of the Constitution at the instance of any employee or the employer for claiming enforcement of any personal contractual rights inter se the employee and his employer.17. If the writ petitioner has any personal grievance in relation to any of his contractual personal rights flowing from any service conditions or any other agreement with therespondent No.12 – Company, his legal remedy lies in filing Civil Suit or take recourse to any other civil law remedy for adjudication and enforcement of his rightsquarespondent No.12 – Company or anyone claiming through them as the case may be. The writ petition under Article 32 of the Constitution is not the remedy for agitating any such grievance.18. It is not in dispute that the parties are already prosecuting their grievances against each other in Civil Court in their respective civil suits filed by them against each other. If that be the position, the same have to be pursued by them in accordance with law against each other.19. So far as the raising of other grievances as set out supraby the writ petitioner against the other respondents are concerned, suffice it to say, this court by order dated 11.07.2018had issued notice tothe official respondents Nos.7 to 11. These respondents pursuant to the notice issued have filed their respective status report in relation to the inquiries, which is being undertaken by them in their respective jurisdiction. We have perused the same20. Needless to say depending upon the outcome of the inquiry once it is completed by the respective official respondents in their exclusive jurisdiction under various Acts, the appropriate action as provided in law will follow against all those who are found guilty. 21. Before parting, we make it clear that we have not expressed any opinion on several factual issues alleged 9 and denied by all the parties against each other in this writ petition and in respective IAs. 22. This order, therefore, will not influence any authority or the Court or ongoing inquiry or proceedings while dealing with any issue.The same has to be dealt with uninfluenced by this order. | 0 | 1,342 | 505 | ### Instruction:
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No.12 – Company, through their Directors and employees has committed several financial irregularities in their business and financial dealing with many Companies, firms and individuals who are having their work places in India and abroad contrary to and in contravention of the provisions of Several Acts/ Rules / Regulations which have gone unnoticed despite the writ petitioner had sent several complaints/representations to various statutory authorities in this behalf.7. According to the writ petitioner, all such dealings/activities of Respondent No.12 – Company, which he has highlighted in the writ petition has not only caused heavy loss to the public exchequer but also rendered the persons, who indulged in these activities, liable to face prosecution for commission of several cognizable offences punishable under the Acts.8. It is essentially with these background facts; the writ petitioner has made allegations in the writ petition. He has also filed some documents to show prima facie that the prayer made by him in his writ petition deserves consideration.9. On 11.07.2018, this Court issued notice of this writ petition confining it to the official respondents namely, respondent Nos.7 to 11. These respondents have filed the status report in a sealed cover. One officialrespondent has filed the affidavit.10. Respondent No.12 – Company, however, in the meantime entered suo motu appearance and has filed IA No.104447 of 2018 praying therein for dismissal of the writ petition on legal as well as on factual grounds. 11. In substance, according to respondent No.12 – Company, the writ petition filed by the writ petitioner under Article 32 of the Constitution deserves dismissal on the groundsinter aliathatitis not abona fide petition. It is contended that this writ petition is filed by a former employee of respondent No.12 – Company to score his personal issues and the differencesqua respondent No.12 – Company, for which some civil suits are pending between the parties in the Civil Court: that the writ petitioner has suppressed several material facts in the writ petition including the fact of pendency of the Civil Suits between them: that the writ petition is filed with an ulterior motive at the behest of others only to tarnish the image of respondent No.12 – Company, in the market: that the writ petition does not involve any issue of infraction/violation of any fundamental rights, guaranteed to the citizens under the Constitution of India, of the petitioners. The Respondent No.12 – Company, has denied all such allegations made against them by the writ petitioner as being baseless. 12. The writ petitioner has countered the averments madeintheaforesaidIAby placingreliance on the averments made in the writ petition contending that there has been no suppression of the material facts as alleged by respondent No.12 – Company. 13. In the meantime several persons /organizations havesuo motufiled the applications being I.A. Nos.3739/2018, 17628485/2018, D.No.110020/2018, 160094/2018, 171501/2018, 160094/2018, 163098/2018, D. No.17594347/2018, 144019/2018, 81895/2018, 165472/2018, 163874/2018, 157884/2018, 115735/2018 and 2974/2019, seeking therein various kinds of reliefs for them individually and collectively against respondent No.12 – Company, in relation to their independent dealings which they claimed to have had with respondent No.12 – Company and which according to them are not till date fructified and given to them by respondent No.12 – Company, as agreed. 14. We have heard all the learned counsel for the parties in support of their case. 15. Having heard the learned counsel for the parties and keeping in view the law laid down by this Court in the cases reported in State of Uttaranchal vs. Balwant Singh Chaufal & Ors. [2010(3) SCC 402], K.D. Sharma vs. Steel Authority of India Ltd. & Ors. [2008(12) SCC 481 and lastly inArun Kumar Agrawalvs.Union of India & Ors. [2014(2) SCCC 609], we are not inclined to grant any relief in this writ petition.16. At the outset, we find that the writ petitioner has not claimed any relief in person qua respondent No.12 – Company, in this writ petition. Even otherwise, no writ lies under Article 32 of the Constitution at the instance of any employee or the employer for claiming enforcement of any personal contractual rights inter se the employee and his employer.17. If the writ petitioner has any personal grievance in relation to any of his contractual personal rights flowing from any service conditions or any other agreement with therespondent No.12 – Company, his legal remedy lies in filing Civil Suit or take recourse to any other civil law remedy for adjudication and enforcement of his rightsquarespondent No.12 – Company or anyone claiming through them as the case may be. The writ petition under Article 32 of the Constitution is not the remedy for agitating any such grievance.18. It is not in dispute that the parties are already prosecuting their grievances against each other in Civil Court in their respective civil suits filed by them against each other. If that be the position, the same have to be pursued by them in accordance with law against each other.19. So far as the raising of other grievances as set out supraby the writ petitioner against the other respondents are concerned, suffice it to say, this court by order dated 11.07.2018had issued notice tothe official respondents Nos.7 to 11. These respondents pursuant to the notice issued have filed their respective status report in relation to the inquiries, which is being undertaken by them in their respective jurisdiction. We have perused the same20. Needless to say depending upon the outcome of the inquiry once it is completed by the respective official respondents in their exclusive jurisdiction under various Acts, the appropriate action as provided in law will follow against all those who are found guilty. 21. Before parting, we make it clear that we have not expressed any opinion on several factual issues alleged 9 and denied by all the parties against each other in this writ petition and in respective IAs. 22. This order, therefore, will not influence any authority or the Court or ongoing inquiry or proceedings while dealing with any issue.The same has to be dealt with uninfluenced by this order.
### Response:
0
### Explanation:
15. Having heard the learned counsel for the parties and keeping in view the law laid down by this Court in the cases reported in State of Uttaranchal vs. Balwant Singh Chaufal & Ors. [2010(3) SCC 402], K.D. Sharma vs. Steel Authority of India Ltd. & Ors. [2008(12) SCC 481 and lastly inArun Kumar Agrawalvs.Union of India & Ors. [2014(2) SCCC 609], we are not inclined to grant any relief in this writ petition.16. At the outset, we find that the writ petitioner has not claimed any relief in person qua respondent No.12 – Company, in this writ petition. Even otherwise, no writ lies under Article 32 of the Constitution at the instance of any employee or the employer for claiming enforcement of any personal contractual rights inter se the employee and his employer.17. If the writ petitioner has any personal grievance in relation to any of his contractual personal rights flowing from any service conditions or any other agreement with therespondent No.12 – Company, his legal remedy lies in filing Civil Suit or take recourse to any other civil law remedy for adjudication and enforcement of his rightsquarespondent No.12 – Company or anyone claiming through them as the case may be. The writ petition under Article 32 of the Constitution is not the remedy for agitating any such grievance.18. It is not in dispute that the parties are already prosecuting their grievances against each other in Civil Court in their respective civil suits filed by them against each other. If that be the position, the same have to be pursued by them in accordance with law against each other.19. So far as the raising of other grievances as set out supraby the writ petitioner against the other respondents are concerned, suffice it to say, this court by order dated 11.07.2018had issued notice tothe official respondents Nos.7 to 11. These respondents pursuant to the notice issued have filed their respective status report in relation to the inquiries, which is being undertaken by them in their respective jurisdiction. We have perused the same20. Needless to say depending upon the outcome of the inquiry once it is completed by the respective official respondents in their exclusive jurisdiction under various Acts, the appropriate action as provided in law will follow against all those who are found guilty. 21. Before parting, we make it clear that we have not expressed any opinion on several factual issues alleged 9 and denied by all the parties against each other in this writ petition and in respective IAs. 22. This order, therefore, will not influence any authority or the Court or ongoing inquiry or proceedings while dealing with any issue.The same has to be dealt with uninfluenced by this order.
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State of Kerala Vs. Goverdhan Hathibhai and Company | an agent. It, therefore, remanded the case to the Appellate Tribunal to determine the terms of the licence and whether the respondent had sold the kerosene in accordance with the terms of the licence.8. In this appeal counsel for both sides canvassed the question of the construction of the agreement. Learned counsel for the State said that the agreement was really one of sale of the kerosene by Caltex (India) Ltd. to the respondent while learned counsel for the respondent contended that the proper interpretation of the agreement was that it constituted the respondent the agent of Caltex (India) Ltd. for the sale of kerosene on its behalf.9. It must be conceded that the question is of difficulty and there is a lot to be said in favour of each of the contending views. It seems to us, however, that it is unnecessary in the present case to decide that question for even if we accept the view for which the respondent contends, it would not be entitled to exemption under section 9. It has to be remembered that the question of construction arose in order only to decide whether the respondent was entitled to exemption under that section.10. Now let us assume that the respondent is right and that under that agreement it obtained the kerosene for sale by it as agent for Caltex (India) Ltd. That alone however would not entitle it to the benefit of section 9. No doubt, in order to get exemption the respondent has to show that its sales were actually in accordance with the terms of the licence which had been granted under the section. That investigation has not yet been made and it was not found necessary to do so in the view that the authorities took. But quite apart from that it is not any and every agent who becomes entitled to the benefit of section 9. It is only an agent "who for an agreed commission ....... sells on behalf of known principals specified in his account in respect of each transaction" that may claim the benefit. Now it seems clear to us that under the agreement of June 1, 1952, the respondent, even if it were the agent of Caltex (India) Ltd., could not sell on behalf of it as its principal and specify it as the principal in its account as required by section 9 for clause 8 of the agreement prevented it from doing so. That clause is in these terms :"The distributors shall not have any right or authority to and shall not incur any debts or liability or enter into any contracts or transact any business whatsoever in the name of or for or on behalf of the company, and shall not represent himself in any way to be, the agent of the company."Under this clause the respondent could not sell expressly on behalf of Caltex (India) Ltd., nor could it enter in its account the sales as such. Under section 9 the sale would have to be on behalf of known principals, that is, a principal known to the purchaser for the agent of course knew who its principal was. In view of clause 8 the respondent could not sell by disclosing to the purchaser that it was selling for Caltex (India) Ltd. What the respondent actually did is irrelevant for if it was not an agent having the right under its agency agreement - and of course it could have no right apart from that agreement - it could not sell expressly on behalf of its principal. Under the section it has to have the right under its agency agreement to sell expressly on behalf of known principals and this it did not have. If it did not have that right, it could not get the benefit of section 9. Therefore even if the respondent was an agent of Caltex (India) Ltd. for the sale of kerosene, it would not be entitled to the exemption under section 9 in view of the terms of its agency agreement.11. Learned counsel for the respondent contended that clause 8 was only a pious declaration and that if it was held that the agreement created an agency, that clause could not be given effect to for then it would be in conflict with the creation of an agency. We are unable to accept this view. It has not been shown to us that an agency agreement cannot provide that the agent could not disclose the fact that it was acting as an agent. Therefore, it is impossible to hold that if clause 8 is an enforceable term, it would prevent the agreement from being construed as an agreement creating an agency. Nor do we find it possible to accept the contention that it contains a pious declaration. It is an operative part of the contract; it is one of the bargains made and is capable of enforcement, if necessary.12. In this view of the matter we think that the appeals must be allowed. We think it right to point out that this aspect of the matter had not struck anyone in the High Court or at any earlier stage. In our view, for the reasons earlier mentioned, this is decisive of the case. We however also think it right to point out that though we are setting aside the judgment of the High Court we express no opinion on the interpretation of the agreement of June 1, 1952, or as to the correctness of the view taken by the High Court. We find it enough to proceed on the assumption that the view for which the respondent contends that the agreement creates an agency is correct for even so, for the reasons earlier mentioned, it must be held that the respondent is not entitled to exemption under section 9 as it is not an agent of the kind contemplated by the section. We leave the question of the proper interpretation of that agreement for decision at a13 | 1[ds]It must be conceded that the question is of difficulty and there is a lot to be said in favour of each of the contending views. It seems to us, however, that it is unnecessary in the present case to decide that question for even if we accept the view for which the respondent contends, it would not be entitled to exemption under section 9. It has to be remembered that the question of construction arose in order only to decide whether the respondent was entitled to exemption under that section.Now let us assume that the respondent is right and that under that agreement it obtained the kerosene for sale by it as agent for Caltex (India) Ltd. That alone however would not entitle it to the benefit of section 9. No doubt, in order to get exemption the respondent has to show that its sales were actually in accordance with the terms of the licence which had been granted under the section. That investigation has not yet been made and it was not found necessary to do so in the view that the authorities took. But quite apart from that it is not any and every agent who becomes entitled to the benefit of section 9. It is only an agent "who for an agreed commission ....... sells on behalf of known principals specified in his account in respect of each transaction" that may claim the benefit. Now it seems clear to us that under the agreement of June 1, 1952, the respondent, even if it were the agent of Caltex (India) Ltd., could not sell on behalf of it as its principal and specify it as the principal in its account as required by section 9 for clause 8 of the agreement prevented it from doing so.Under section 9 the sale would have to be on behalf of known principals, that is, a principal known to the purchaser for the agent of course knew who its principal was. In view of clause 8 the respondent could not sell by disclosing to the purchaser that it was selling for Caltex (India) Ltd. What the respondent actually did is irrelevant for if it was not an agent having the right under its agency agreementand of course it could have no right apart from that agreementit could not sell expressly on behalf of its principal. Under the section it has to have the right under its agency agreement to sell expressly on behalf of known principals and this it did not have. If it did not have that right, it could not get the benefit of section 9. Therefore even if the respondent was an agent of Caltex (India) Ltd. for the sale of kerosene, it would not be entitled to the exemption under section 9 in view of the terms of its agency agreement. | 1 | 1,994 | 512 | ### Instruction:
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an agent. It, therefore, remanded the case to the Appellate Tribunal to determine the terms of the licence and whether the respondent had sold the kerosene in accordance with the terms of the licence.8. In this appeal counsel for both sides canvassed the question of the construction of the agreement. Learned counsel for the State said that the agreement was really one of sale of the kerosene by Caltex (India) Ltd. to the respondent while learned counsel for the respondent contended that the proper interpretation of the agreement was that it constituted the respondent the agent of Caltex (India) Ltd. for the sale of kerosene on its behalf.9. It must be conceded that the question is of difficulty and there is a lot to be said in favour of each of the contending views. It seems to us, however, that it is unnecessary in the present case to decide that question for even if we accept the view for which the respondent contends, it would not be entitled to exemption under section 9. It has to be remembered that the question of construction arose in order only to decide whether the respondent was entitled to exemption under that section.10. Now let us assume that the respondent is right and that under that agreement it obtained the kerosene for sale by it as agent for Caltex (India) Ltd. That alone however would not entitle it to the benefit of section 9. No doubt, in order to get exemption the respondent has to show that its sales were actually in accordance with the terms of the licence which had been granted under the section. That investigation has not yet been made and it was not found necessary to do so in the view that the authorities took. But quite apart from that it is not any and every agent who becomes entitled to the benefit of section 9. It is only an agent "who for an agreed commission ....... sells on behalf of known principals specified in his account in respect of each transaction" that may claim the benefit. Now it seems clear to us that under the agreement of June 1, 1952, the respondent, even if it were the agent of Caltex (India) Ltd., could not sell on behalf of it as its principal and specify it as the principal in its account as required by section 9 for clause 8 of the agreement prevented it from doing so. That clause is in these terms :"The distributors shall not have any right or authority to and shall not incur any debts or liability or enter into any contracts or transact any business whatsoever in the name of or for or on behalf of the company, and shall not represent himself in any way to be, the agent of the company."Under this clause the respondent could not sell expressly on behalf of Caltex (India) Ltd., nor could it enter in its account the sales as such. Under section 9 the sale would have to be on behalf of known principals, that is, a principal known to the purchaser for the agent of course knew who its principal was. In view of clause 8 the respondent could not sell by disclosing to the purchaser that it was selling for Caltex (India) Ltd. What the respondent actually did is irrelevant for if it was not an agent having the right under its agency agreement - and of course it could have no right apart from that agreement - it could not sell expressly on behalf of its principal. Under the section it has to have the right under its agency agreement to sell expressly on behalf of known principals and this it did not have. If it did not have that right, it could not get the benefit of section 9. Therefore even if the respondent was an agent of Caltex (India) Ltd. for the sale of kerosene, it would not be entitled to the exemption under section 9 in view of the terms of its agency agreement.11. Learned counsel for the respondent contended that clause 8 was only a pious declaration and that if it was held that the agreement created an agency, that clause could not be given effect to for then it would be in conflict with the creation of an agency. We are unable to accept this view. It has not been shown to us that an agency agreement cannot provide that the agent could not disclose the fact that it was acting as an agent. Therefore, it is impossible to hold that if clause 8 is an enforceable term, it would prevent the agreement from being construed as an agreement creating an agency. Nor do we find it possible to accept the contention that it contains a pious declaration. It is an operative part of the contract; it is one of the bargains made and is capable of enforcement, if necessary.12. In this view of the matter we think that the appeals must be allowed. We think it right to point out that this aspect of the matter had not struck anyone in the High Court or at any earlier stage. In our view, for the reasons earlier mentioned, this is decisive of the case. We however also think it right to point out that though we are setting aside the judgment of the High Court we express no opinion on the interpretation of the agreement of June 1, 1952, or as to the correctness of the view taken by the High Court. We find it enough to proceed on the assumption that the view for which the respondent contends that the agreement creates an agency is correct for even so, for the reasons earlier mentioned, it must be held that the respondent is not entitled to exemption under section 9 as it is not an agent of the kind contemplated by the section. We leave the question of the proper interpretation of that agreement for decision at a13
### Response:
1
### Explanation:
It must be conceded that the question is of difficulty and there is a lot to be said in favour of each of the contending views. It seems to us, however, that it is unnecessary in the present case to decide that question for even if we accept the view for which the respondent contends, it would not be entitled to exemption under section 9. It has to be remembered that the question of construction arose in order only to decide whether the respondent was entitled to exemption under that section.Now let us assume that the respondent is right and that under that agreement it obtained the kerosene for sale by it as agent for Caltex (India) Ltd. That alone however would not entitle it to the benefit of section 9. No doubt, in order to get exemption the respondent has to show that its sales were actually in accordance with the terms of the licence which had been granted under the section. That investigation has not yet been made and it was not found necessary to do so in the view that the authorities took. But quite apart from that it is not any and every agent who becomes entitled to the benefit of section 9. It is only an agent "who for an agreed commission ....... sells on behalf of known principals specified in his account in respect of each transaction" that may claim the benefit. Now it seems clear to us that under the agreement of June 1, 1952, the respondent, even if it were the agent of Caltex (India) Ltd., could not sell on behalf of it as its principal and specify it as the principal in its account as required by section 9 for clause 8 of the agreement prevented it from doing so.Under section 9 the sale would have to be on behalf of known principals, that is, a principal known to the purchaser for the agent of course knew who its principal was. In view of clause 8 the respondent could not sell by disclosing to the purchaser that it was selling for Caltex (India) Ltd. What the respondent actually did is irrelevant for if it was not an agent having the right under its agency agreementand of course it could have no right apart from that agreementit could not sell expressly on behalf of its principal. Under the section it has to have the right under its agency agreement to sell expressly on behalf of known principals and this it did not have. If it did not have that right, it could not get the benefit of section 9. Therefore even if the respondent was an agent of Caltex (India) Ltd. for the sale of kerosene, it would not be entitled to the exemption under section 9 in view of the terms of its agency agreement.
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Chief Comnissioner, Delhi And Ors Vs. Chadha Motor Transport Co | issued a notification under S. 68 (2) (ww) of the Motor Vehicles Act, 1939. Under this notification, the respondent and other agents engaged in the business of collecting forwarding and distributing goods carried by public carriers are required to take out licences. The respondent filed a writ petition in the Punjab High Court challenging Cl. (ww) of S.68 (2) and the aforesaid notification on various grounds and asking for an order quashing the notification. A single Judge of the High Court struck down Cl. (ww) and allowed the writ petition. He held that the clause was ultra vires and invalid and therefore the notification issued under it was also invalid. His decision was affirmed on Letters Patent Appeal by a Division Bench of the High Court. The appellants have preferred the present appeal from this order after obtaining a certificate from the High Court. 2. Chapter IV of the Motor Vehicles Act, 1939 provides for control of transport vehicles. The chapter contains Sections 42 to 68. Section 68 (I) provides that a State Government may make rules for the purpose of carrying into effect the provisions of Chap. IV. Section 68 (2) provides that without prejudice to the generality of the foregoing power, rules under the section may be made with respect to all or any other matters enumerated in the various sub-clauses thereof Clause (ww) of S. 68 (2) provides that the State Government may make rules for "the licensing of agents engaged in the business of collecting, forwarding and distributing of goods carried by public carriers. " This clause was inserted in S. 68 (2) by Delhi Act, No. 5 of 1954 and also later by Central Act No. 100 of 1 956. 3. The High Court held that as the rules framed under S. 68 can be made only for the purpose of carrying into effect the provisions of Chap. IV, such rules must relate to a substantive provision of law in the chapter. As there was no substantive provision in Chap. IV requiring agents in the business of collecting, forwarding and distributing goods carried by public carriers to take out licences, the legislature had no power to enact Cl. (ww) of S. 68 (2) authorising the framing of rules for the licensing of such agents. The legislature must, in the first instance, make a law requiring such agents to take out licences. As the legislature did not make such a law, the clause is ultra vires its powers and is invalid. 4. We are unable to accept this line of reasoning. Section 68 (2) specifically enumerates the matters on which rules under the section can be made for the purpose of carrying into effect the provisions of Chap. IV. Clause (ww) of S. 68 (2) is an expression of the will of the legislature that rules for the licensing of agents engaged in the business of collecting, forwarding and distributing goods carried by public carriers may be made for the purpose of carrying into effect the provisions of Chap. IV. The proposition that the legislature must in the first instance incorporate in the Act a section requiring a class of persons to take out licences before it can enact a section authorising the making of rules for such licensing is unsound and must be rejected. Within the limits of their legislative powers. Parliament and the State legislatures have plenary powers of legislation, and they may delegate to an executive authority the power to make rules for the licensing of any class of persons. This law may be open to attack on the ground that it is not on a matter on which the legislature is competent to legislate or on the ground that there is excessive delegation of legislative power. But it cannot be struck down on the ground that the legislature has made no other provision for licensing in the body of the Act. There is no constitutional prohibition against the making of a law authorising the making of rules on any topic without the support of another substantive provision of law in the body of the Act. Take Chap. VII of the Motor Vehicles Act dealing with motor vehicles temporarily leaving or visiting India. That chapter contains one section, namely, S. 92. The section provides for the making of rules only. It authorises the Central Government to make rules inter alla for the grant and authentication of travelling passes, certificates or authorisations to persons temporarily taking motor vehicles out of India to any place outside India and prescribing the conditions subject to which motor vehicles brought temporarily into India from outside India by persons intending to make a temporary stay in India may be possessed and used in India. There is no other substantive provision of law in Chap. VII or any other Chapter of the Act on the subject of motor vehicles temporarily leaving or visiting India. But the absence of such a substantive provision does not render either S. 92 or the rules made under it invalid. If the Central Government frames rules under S. 92, such rules must be complied with. 5. We, therefore, hold that Cl. (ww) of S. 68 (2) cannot be struck down on the ground that there is no other substantive provision of law in the body of the Act requiring the taking out of licences. On behalf of the respondent it was suggested that the clause is invalid on the ground that it is a law on a subject on which the legislature is not competent to legislate. It was also suggested that it is bad on the ground of excessive delegation of legislative power. The High Court has not struck down the clause on either of these grounds. Nor has the High Court considered the other grounds raised in the petition challenging the validity of the notification dated October 27, 1956. As the High Court has not dealt with the other contentions raised in the petition, the matter must be remanded to the High Court. | 1[ds]3. The High Court held that as the rules framed under S. 68 can be made only for the purpose of carrying into effect the provisions of Chap. IV, such rules must relate to a substantive provision of law in the chapter. As there was no substantive provision in Chap. IV requiring agents in the business of collecting, forwarding and distributing goods carried by public carriers to take out licences, the legislature had no power to enact Cl. (ww) of S. 68 (2) authorising the framing of rules for the licensing of such agents. The legislature must, in the first instance, make a law requiring such agents to take out licences. As the legislature did not make such a law, the clause is ultra vires its powers and is invalid4. We are unable to accept this line of reasoning. Section 68 (2) specifically enumerates the matters on which rules under the section can be made for the purpose of carrying into effect the provisions of Chap. IV. Clause (ww) of S. 68 (2) is an expression of the will of the legislature that rules for the licensing of agents engaged in the business of collecting, forwarding and distributing goods carried by public carriers may be made for the purpose of carrying into effect the provisions of Chap. IV. The proposition that the legislature must in the first instance incorporate in the Act a section requiring a class of persons to take out licences before it can enact a section authorising the making of rules for such licensing is unsound and must be rejected. Within the limits of their legislative powers. Parliament and the State legislatures have plenary powers of legislation, and they may delegate to an executive authority the power to make rules for the licensing of any class of persons. This law may be open to attack on the ground that it is not on a matter on which the legislature is competent to legislate or on the ground that there is excessive delegation of legislative power. But it cannot be struck down on the ground that the legislature has made no other provision for licensing in the body of thee is no constitutional prohibition against the making of a law authorising the making of rules on any topic without the support of another substantive provision of law in the body of the Act. Take Chap. VII of the Motor Vehicles Act dealing with motor vehicles temporarily leaving or visiting India. That chapter contains one section, namely, S. 92. The section provides for the making of rules only. It authorises the Central Government to make rules inter alla for the grant and authentication of travelling passes, certificates or authorisations to persons temporarily taking motor vehicles out of India to any place outside India and prescribing the conditions subject to which motor vehicles brought temporarily into India from outside India by persons intending to make a temporary stay in India may be possessed and used in India. There is no other substantive provision of law in Chap. VII or any other Chapter of the Act on the subject of motor vehicles temporarily leaving or visiting India. But the absence of such a substantive provision does not render either S. 92 or the rules made under it invalid. If the Central Government frames rules under S. 92, such rules must be complied with5. We, therefore, hold that Cl. (ww) of S. 68 (2) cannot be struck down on the ground that there is no other substantive provision of law in the body of the Act requiring the taking out of licences. On behalf of the respondent it was suggested that the clause is invalid on the ground that it is a law on a subject on which the legislature is not competent to legislate. It was also suggested that it is bad on the ground of excessive delegation of legislative power. The High Court has not struck down the clause on either of these grounds. Nor has the High Court considered the other grounds raised in the petition challenging the validity of the notification dated October 27, 1956. As the High Court has not dealt with the other contentions raised in the petition, the matter must be remanded to the High Court. | 1 | 1,149 | 781 | ### 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:
issued a notification under S. 68 (2) (ww) of the Motor Vehicles Act, 1939. Under this notification, the respondent and other agents engaged in the business of collecting forwarding and distributing goods carried by public carriers are required to take out licences. The respondent filed a writ petition in the Punjab High Court challenging Cl. (ww) of S.68 (2) and the aforesaid notification on various grounds and asking for an order quashing the notification. A single Judge of the High Court struck down Cl. (ww) and allowed the writ petition. He held that the clause was ultra vires and invalid and therefore the notification issued under it was also invalid. His decision was affirmed on Letters Patent Appeal by a Division Bench of the High Court. The appellants have preferred the present appeal from this order after obtaining a certificate from the High Court. 2. Chapter IV of the Motor Vehicles Act, 1939 provides for control of transport vehicles. The chapter contains Sections 42 to 68. Section 68 (I) provides that a State Government may make rules for the purpose of carrying into effect the provisions of Chap. IV. Section 68 (2) provides that without prejudice to the generality of the foregoing power, rules under the section may be made with respect to all or any other matters enumerated in the various sub-clauses thereof Clause (ww) of S. 68 (2) provides that the State Government may make rules for "the licensing of agents engaged in the business of collecting, forwarding and distributing of goods carried by public carriers. " This clause was inserted in S. 68 (2) by Delhi Act, No. 5 of 1954 and also later by Central Act No. 100 of 1 956. 3. The High Court held that as the rules framed under S. 68 can be made only for the purpose of carrying into effect the provisions of Chap. IV, such rules must relate to a substantive provision of law in the chapter. As there was no substantive provision in Chap. IV requiring agents in the business of collecting, forwarding and distributing goods carried by public carriers to take out licences, the legislature had no power to enact Cl. (ww) of S. 68 (2) authorising the framing of rules for the licensing of such agents. The legislature must, in the first instance, make a law requiring such agents to take out licences. As the legislature did not make such a law, the clause is ultra vires its powers and is invalid. 4. We are unable to accept this line of reasoning. Section 68 (2) specifically enumerates the matters on which rules under the section can be made for the purpose of carrying into effect the provisions of Chap. IV. Clause (ww) of S. 68 (2) is an expression of the will of the legislature that rules for the licensing of agents engaged in the business of collecting, forwarding and distributing goods carried by public carriers may be made for the purpose of carrying into effect the provisions of Chap. IV. The proposition that the legislature must in the first instance incorporate in the Act a section requiring a class of persons to take out licences before it can enact a section authorising the making of rules for such licensing is unsound and must be rejected. Within the limits of their legislative powers. Parliament and the State legislatures have plenary powers of legislation, and they may delegate to an executive authority the power to make rules for the licensing of any class of persons. This law may be open to attack on the ground that it is not on a matter on which the legislature is competent to legislate or on the ground that there is excessive delegation of legislative power. But it cannot be struck down on the ground that the legislature has made no other provision for licensing in the body of the Act. There is no constitutional prohibition against the making of a law authorising the making of rules on any topic without the support of another substantive provision of law in the body of the Act. Take Chap. VII of the Motor Vehicles Act dealing with motor vehicles temporarily leaving or visiting India. That chapter contains one section, namely, S. 92. The section provides for the making of rules only. It authorises the Central Government to make rules inter alla for the grant and authentication of travelling passes, certificates or authorisations to persons temporarily taking motor vehicles out of India to any place outside India and prescribing the conditions subject to which motor vehicles brought temporarily into India from outside India by persons intending to make a temporary stay in India may be possessed and used in India. There is no other substantive provision of law in Chap. VII or any other Chapter of the Act on the subject of motor vehicles temporarily leaving or visiting India. But the absence of such a substantive provision does not render either S. 92 or the rules made under it invalid. If the Central Government frames rules under S. 92, such rules must be complied with. 5. We, therefore, hold that Cl. (ww) of S. 68 (2) cannot be struck down on the ground that there is no other substantive provision of law in the body of the Act requiring the taking out of licences. On behalf of the respondent it was suggested that the clause is invalid on the ground that it is a law on a subject on which the legislature is not competent to legislate. It was also suggested that it is bad on the ground of excessive delegation of legislative power. The High Court has not struck down the clause on either of these grounds. Nor has the High Court considered the other grounds raised in the petition challenging the validity of the notification dated October 27, 1956. As the High Court has not dealt with the other contentions raised in the petition, the matter must be remanded to the High Court.
### Response:
1
### Explanation:
3. The High Court held that as the rules framed under S. 68 can be made only for the purpose of carrying into effect the provisions of Chap. IV, such rules must relate to a substantive provision of law in the chapter. As there was no substantive provision in Chap. IV requiring agents in the business of collecting, forwarding and distributing goods carried by public carriers to take out licences, the legislature had no power to enact Cl. (ww) of S. 68 (2) authorising the framing of rules for the licensing of such agents. The legislature must, in the first instance, make a law requiring such agents to take out licences. As the legislature did not make such a law, the clause is ultra vires its powers and is invalid4. We are unable to accept this line of reasoning. Section 68 (2) specifically enumerates the matters on which rules under the section can be made for the purpose of carrying into effect the provisions of Chap. IV. Clause (ww) of S. 68 (2) is an expression of the will of the legislature that rules for the licensing of agents engaged in the business of collecting, forwarding and distributing goods carried by public carriers may be made for the purpose of carrying into effect the provisions of Chap. IV. The proposition that the legislature must in the first instance incorporate in the Act a section requiring a class of persons to take out licences before it can enact a section authorising the making of rules for such licensing is unsound and must be rejected. Within the limits of their legislative powers. Parliament and the State legislatures have plenary powers of legislation, and they may delegate to an executive authority the power to make rules for the licensing of any class of persons. This law may be open to attack on the ground that it is not on a matter on which the legislature is competent to legislate or on the ground that there is excessive delegation of legislative power. But it cannot be struck down on the ground that the legislature has made no other provision for licensing in the body of thee is no constitutional prohibition against the making of a law authorising the making of rules on any topic without the support of another substantive provision of law in the body of the Act. Take Chap. VII of the Motor Vehicles Act dealing with motor vehicles temporarily leaving or visiting India. That chapter contains one section, namely, S. 92. The section provides for the making of rules only. It authorises the Central Government to make rules inter alla for the grant and authentication of travelling passes, certificates or authorisations to persons temporarily taking motor vehicles out of India to any place outside India and prescribing the conditions subject to which motor vehicles brought temporarily into India from outside India by persons intending to make a temporary stay in India may be possessed and used in India. There is no other substantive provision of law in Chap. VII or any other Chapter of the Act on the subject of motor vehicles temporarily leaving or visiting India. But the absence of such a substantive provision does not render either S. 92 or the rules made under it invalid. If the Central Government frames rules under S. 92, such rules must be complied with5. We, therefore, hold that Cl. (ww) of S. 68 (2) cannot be struck down on the ground that there is no other substantive provision of law in the body of the Act requiring the taking out of licences. On behalf of the respondent it was suggested that the clause is invalid on the ground that it is a law on a subject on which the legislature is not competent to legislate. It was also suggested that it is bad on the ground of excessive delegation of legislative power. The High Court has not struck down the clause on either of these grounds. Nor has the High Court considered the other grounds raised in the petition challenging the validity of the notification dated October 27, 1956. As the High Court has not dealt with the other contentions raised in the petition, the matter must be remanded to the High Court.
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New India Assurance Company Ltd Vs. Afroz Bi | Arijit Pasayat, J. 1. Leave granted. 2. Challenge in these appeals is to the orders passed by the Division Bench of the Madhya Pradesh High Court, Indore Bench in Miscellaneous Appeal No. 473 of 1997 which was disposed of on 14.7.2004 and MCC No. 597 of 2004 filed for reviewing the said order which was rejected by order dated 2.2.2005. 3. Background facts in a nutshell are as follows:4. One Nisar Khan (hereinafter referred to as the deceased) met with an accident on 17.8.1992. The offending vehicle (No. MP-09-D-3815) was the subject matter of insurance with National Insurance Company Ltd. Policy of insurance issued by it covered the period from 5.10.1991 to 4.10.1992. Appellant issued insurance cover in respect of the vehicle covering the period from 7.11.1992 to 6.11.1993. A petition claiming compensation was filed before the IVth Additional Member, Motor Accidents Claims Tribunal, Dewas (in short the MACT). The claim was lodged by the widow, three minor children and the mother of the deceased. In the claim petition the owner of the vehicle, the driver of the vehicle and the appellant Insurance Company were arrayed as the respondents. The MACT taking into account the evidence on record held that the owner of the vehicle and the driver were liable to pay the compensation fixed at Rs.1,20,000/- with interest. So far as the present dispute is concerned the quantum of award and the interest is really not relevant. The MACT took note of the fact that the offending vehicle was not the subject matter of insurance with the appellant-insurance company because the cheque which was issued to cover the premium had been dishonored and the policy had become inoperative. Copy of the insurance policy was annexed as Annexure P-1. It was therefore held that present appellant has no liability with regard to the accident as on the fateful day the vehicle was not the subject matter of insurance with it. The claimant preferred an appeal questioning the conclusions regarding absence of liability of the present appellant. The High Court held that the quantum awarded was reasonable. It was, however, held that bouncing of cheque issued on a later date cannot take away liability of the insurer qua a third party. Accordingly the High Court allowed the appeal in part and held that the appellant-Insurance company was also liable along with owner and the driver in respect of the award.5. A review application was filed. It was brought to the notice of the High Court that even if it is accepted for the sake of argument that bouncing of the cheque is not of any relevance, the liability cannot be fastened on the appellant as the cheque issued related to a subsequent period and the insurance cover as noted above was relatable to the period from 7.11.1992 to 6.11.1993 i.e. after the date of accident i.e. 17.8.1992. It is pointed out that during the said period, as the records show, the vehicle was the subject matter of insurance with National Insurance Company Ltd. which was not even arrayed as a party in the claim petition. 6. There is no appearance on behalf of the respondents in spite of service of notice. In support of the appeals, learned counsel for the appellant submitted that the question involved is not the effect of bouncing of cheque and the real question is the period for which the insurance cover was issued. It appears that the High Court has not taken note of the basic issue involved so far as the present appellant is concerned. Its specific stand was that even the cheque which was issued and subsequently dishonored related to the period from 7.11.1992 to 6.11.1993. The period obviously was subsequent to the date of accident. The copy of the cover note is annexed as Annexure P-2 to the Memorandum of Appeal before this Court and it clearly shows that the period covered was 7.11.1992 to 6.11.1993. This aspect was also highlighted in the review petition before the High Court. That being so, the High Court was required to examine the liability, if any, of the appellant-Insurance Company. In that factual background the question whether bouncing of the cheque subsequently affected the liability of the insurer was really not relevant for the purpose of the present case. Additionally, National Insurance Company Ltd., which is stated to be the insurer for the relevant period, during which the accident took place, was not pleaded as party before the MACT. | 1[ds]It appears that the High Court has not taken note of the basic issue involved so far as the present appellant is concerned. Its specific stand was that even the cheque which was issued and subsequently dishonored related to the period from 7.11.1992 to 6.11.1993. The period obviously was subsequent to the date of accident. The copy of the cover note is annexed as Annexure P-2 to the Memorandum of Appeal before this Court and it clearly shows that the period covered was 7.11.1992 to 6.11.1993. This aspect was also highlighted in the review petition before the High Court. That being so, the High Court was required to examine the liability, if any, of the appellant-Insurance Company. In that factual background the question whether bouncing of the cheque subsequently affected the liability of the insurer was really not relevant for the purpose of the present case. Additionally, National Insurance Company Ltd., which is stated to be the insurer for the relevant period, during which the accident took place, was not pleaded as party before the MACT. | 1 | 811 | 195 | ### 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:
Arijit Pasayat, J. 1. Leave granted. 2. Challenge in these appeals is to the orders passed by the Division Bench of the Madhya Pradesh High Court, Indore Bench in Miscellaneous Appeal No. 473 of 1997 which was disposed of on 14.7.2004 and MCC No. 597 of 2004 filed for reviewing the said order which was rejected by order dated 2.2.2005. 3. Background facts in a nutshell are as follows:4. One Nisar Khan (hereinafter referred to as the deceased) met with an accident on 17.8.1992. The offending vehicle (No. MP-09-D-3815) was the subject matter of insurance with National Insurance Company Ltd. Policy of insurance issued by it covered the period from 5.10.1991 to 4.10.1992. Appellant issued insurance cover in respect of the vehicle covering the period from 7.11.1992 to 6.11.1993. A petition claiming compensation was filed before the IVth Additional Member, Motor Accidents Claims Tribunal, Dewas (in short the MACT). The claim was lodged by the widow, three minor children and the mother of the deceased. In the claim petition the owner of the vehicle, the driver of the vehicle and the appellant Insurance Company were arrayed as the respondents. The MACT taking into account the evidence on record held that the owner of the vehicle and the driver were liable to pay the compensation fixed at Rs.1,20,000/- with interest. So far as the present dispute is concerned the quantum of award and the interest is really not relevant. The MACT took note of the fact that the offending vehicle was not the subject matter of insurance with the appellant-insurance company because the cheque which was issued to cover the premium had been dishonored and the policy had become inoperative. Copy of the insurance policy was annexed as Annexure P-1. It was therefore held that present appellant has no liability with regard to the accident as on the fateful day the vehicle was not the subject matter of insurance with it. The claimant preferred an appeal questioning the conclusions regarding absence of liability of the present appellant. The High Court held that the quantum awarded was reasonable. It was, however, held that bouncing of cheque issued on a later date cannot take away liability of the insurer qua a third party. Accordingly the High Court allowed the appeal in part and held that the appellant-Insurance company was also liable along with owner and the driver in respect of the award.5. A review application was filed. It was brought to the notice of the High Court that even if it is accepted for the sake of argument that bouncing of the cheque is not of any relevance, the liability cannot be fastened on the appellant as the cheque issued related to a subsequent period and the insurance cover as noted above was relatable to the period from 7.11.1992 to 6.11.1993 i.e. after the date of accident i.e. 17.8.1992. It is pointed out that during the said period, as the records show, the vehicle was the subject matter of insurance with National Insurance Company Ltd. which was not even arrayed as a party in the claim petition. 6. There is no appearance on behalf of the respondents in spite of service of notice. In support of the appeals, learned counsel for the appellant submitted that the question involved is not the effect of bouncing of cheque and the real question is the period for which the insurance cover was issued. It appears that the High Court has not taken note of the basic issue involved so far as the present appellant is concerned. Its specific stand was that even the cheque which was issued and subsequently dishonored related to the period from 7.11.1992 to 6.11.1993. The period obviously was subsequent to the date of accident. The copy of the cover note is annexed as Annexure P-2 to the Memorandum of Appeal before this Court and it clearly shows that the period covered was 7.11.1992 to 6.11.1993. This aspect was also highlighted in the review petition before the High Court. That being so, the High Court was required to examine the liability, if any, of the appellant-Insurance Company. In that factual background the question whether bouncing of the cheque subsequently affected the liability of the insurer was really not relevant for the purpose of the present case. Additionally, National Insurance Company Ltd., which is stated to be the insurer for the relevant period, during which the accident took place, was not pleaded as party before the MACT.
### Response:
1
### Explanation:
It appears that the High Court has not taken note of the basic issue involved so far as the present appellant is concerned. Its specific stand was that even the cheque which was issued and subsequently dishonored related to the period from 7.11.1992 to 6.11.1993. The period obviously was subsequent to the date of accident. The copy of the cover note is annexed as Annexure P-2 to the Memorandum of Appeal before this Court and it clearly shows that the period covered was 7.11.1992 to 6.11.1993. This aspect was also highlighted in the review petition before the High Court. That being so, the High Court was required to examine the liability, if any, of the appellant-Insurance Company. In that factual background the question whether bouncing of the cheque subsequently affected the liability of the insurer was really not relevant for the purpose of the present case. Additionally, National Insurance Company Ltd., which is stated to be the insurer for the relevant period, during which the accident took place, was not pleaded as party before the MACT.
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M.P. RAJYA TILHAN UTPADAK SAHAKARI SANGH MARYADIT, PACHAMA, DISTRICT SEHORE AND OTHERS Vs. M/S. MODI TRANSPORT SERVICE | examination or adjustment) of the Code. For submission to arbitration, there must be an arbitration agreement or an agreement in terms of Section 21 of the Act that the difference or dispute between the parties for which they intend to be determined in a quasi-judicial manner. Commissioners are appointed by the court. Appointment may be with consent of the parties, or even when there is objection to the appointment. Preexisting agreement or the requirement that the parties agree before the court, as is mandatory in case of arbitration, is not necessary when a court directs appointment of a commissioner. In the case of a reference to a commissioner, all that the parties expect from the commissioner is a valuation/ examination of the subject matter referred, which he would do according to his skill, knowledge and experience, which may be without taking any evidence or hearing argument (Halsbury, Vol.1, Edn. 2 at Pg. 622). In light of the aforesaid decisions, we would like to introduce the principle of a facilitator which a court may appoint, be it a commissioner or an expert, for a specific purpose and cause for ascertainment of a fact which may be even disputed. In some cases, the commissioner may even hear the parties and give his expert opinion based on the material or evidence produced by the parties before the commissioner, as in this case when the court appointed a Chartered Account who as an expert was required to give his opinion on the statement on accounts to facilitate and help the court arrive at a fair and just decision. It was to save the courts time and cut delay in the decision by the court. 33. Order XXVI Rule 9 of the Code gives wide powers to the court to appoint a commissioner to make local investigations which may be requisite or proper for elucidating any matter in dispute, ascertaining the market value of any property, account of mesne profit or damages or annual net profits. Under Order XXVI Rule 11, the court has the power to issue a commission in a suit, in which examination of adjustment of accounts is necessary, to a person as it thinks fit directing him to make such examination or adjustment. When a court issues such a commission to such a person, it can direct the commissioner to make such an investigation, examination and adjustment and submit a report thereon to the court. The commissioner so appointed does not strictly perform a judicial act which is binding but only a ministerial act. Nothing is left to the commissioners discretion, and there is no occasion to use his judgment or permitting the commissioner to adjudicate and decide the issue involved; the commissioners report is only an opinion or noting, as the case may be with the details and/or statement to the court the actual state of affairs. Such a report does not automatically form part of the courts opinion, as the court has the power to confirm, vary or set aside the report or in a given case issue a new commission. Hence, there is neither abdication nor delegation of the powers of functions of the court to decide the issue. Sometimes, on examination of the commissioner, the report forms part of the record and evidence A. Nagarajan v. A. Madhanakumar 1996 SCC OnLine Mad 17. The parties can contest an expert opinion/commissioners report, and the court, after hearing objections, can determine whether or not it should rely upon such an expert opinion/commissioners report. Even if the court relies upon the same, it will merely aid and not bind the court. In strict sense, the commissioners reports are non-adjudicatory in nature, and the courts adjudicate upon the rights of the parties. 34. By Act 18 of 2018, Section14A [14A. Power of court to engage experts.—(1) Without ..... and at such time, as the court may direct.] has been inserted in the Specific Relief Act, 1963. The provision states that without prejudice to the provisions of the Code in any suit under the Act in question where a court considers it necessary to get expert opinion to assess it on a specific issue involved in the suit, it may engage one or more experts and direct to report to it on such issue. The court may secure the experts attendance for providing evidence, including the production of documents on the issue. The opinion or report of the expert would form part of the record of the suit as is the case with the commissioners report. With the courts permission, the parties to the suit may examine the expert personally in the open court on any of the matters referred to him or as to his opinion or report or as to the manner in which he has made the inspection. 35. The matter referred to S.K. Mantri was limited to examination of the accounts. The issues and questions of dispute in the suit were far broader and wider. These included questions as to the agreed price or the rate of transportation in view of the letter dated 05th June 1992, which was withdrawn by letter dated 30th September 1992, computation of the transportation costs payable to the plaintiff under the contract in case the coal delivered was within or beyond the 1% stipulation, whether or not the defendants were right in making deductions on account of bad quality coal, higher moisture content etc. whereby the weight of the coal had increased, delay in delivery on the part of the plaintiff, whether the defendants are entitled to charge interest while making recoveries, etc. It is interesting to note that the S.K. Mantri himself did not decide whether or not the plaintiff is entitled to rent of the plot or security charges observing that this was an aspect for the court to decide. However, he forgot that his jurisdiction was limited to checking and verifying accounts and not deciding any issue or questions beyond the accounts on issues and questions referred to above. | 1[ds]16. Interpreting Section 21 of the Act, a Full Bench of the Punjab and Haryana High Court in Firm Khetu Ram Bashamber Dass v. Kashmiri Lal 1959 SCC OnLine Punj 102 has held:Thus, before any matter involved in a suit pending in a Court can be referred to arbitration (a) there must be an agreement amongst all the parties interested that any matter in dispute between them in the suit shall be referred to arbitration; (b) if they come to such an agreement, then they have to make an application in writing to the Court concerned; and (c) thereafter, the Court has to pass an order referring the dispute to the arbitrator agreed upon between the parties.There can be no manner of doubt that if there is no agreement between all the parties who are interested in the case and if the application is not made on behalf of them all, the reference made by the Court is bad and the award based on such a reference is invalid in law. This view has been consistently taken by all the High Courts. In Negi Puran Singh v. Hira Singh and others, while dealing with provisions of Civil Procedure Code, 1882, similar to sections 21 and 23 of the Arbitration Act, Stanley, C.J. and Banerji, J., of the Allahabad High Court held that if there was no application signed by all the parties who were interested in the settlement of the suit, the reference and the award given, thereafter, would be invalid. The same view was taken in Haswa v. Mahbub and another, by another Division Bench of the same Court. In Gopal Das v. Baij Nath, Sulaiman, J., (as he then was), referred to a number of decisions of Allahabad and Calcutta High Courts and observed as follows:—*** it is necessary that all persons who are interested in the matter which is in difference between the parties and which is going to be referred to arbitration, should join. Although it is not absolutely necessary that they should all sign the application made to the Court, it is necessary that they should agree to the reference.See also Tej Singh and another v. Ghase Ram and others , In Ram Harakh Singh v. Mumtaz Hasain, the question of acquiescence and ratification was also considered.Following Gopal Das v. Baij Nath and Subba Rao v. Appadurai , Ghulam Hasan, J., held that the foundation of the jurisdiction of the Court is the consent of the parties and the subsequent ratification does not validate the reference which was void ab initio. Calcutta and Madras High Courts have also taken a similar view. The question was considered by a Full Bench of the Calcutta High Court in Laduram v. Nandlal, Mookerjee, J., at page 114 of the report observed as follows:—The foundation of jurisdiction here is the agreement amongst all the parties interested that the matters in difference between them shall be referred to arbitration. If all the parties interested do not apply and yet an order of reference is made, the order is illegal because made without jurisdiction. If an award follows on the basis of that reference, it is equally illegal, because it is founded upon a reference made without jurisdiction.See also Seth Dooly Chand v. Munuji and others and Khan Mohmed v. Chella Ram and another and Subha Rao v. Appadurai.In Subha Rao v. Appadurai, Devadoss, J., while considering the provisions of para 1 of Schedule II, Civil Procedure Code,—which in substance is the same as section 21 of the Arbitration Act—observed as follows:—What gives the Court jurisdiction to refer the matter to arbitration is consent of all the parties. Consent subsequently given cannot give jurisdiction to the Court which it did not possess at the time when it referred the matter to arbitration.17. In our opinion, the aforesaid ratio expresses the correct position in law. Arbitration is an alternative to the court adjudication process by a private forum chosen by the parties. Normally reference can be made or even directed to the arbitrator only if a preexisting arbitration agreement subsists between the parties. In the absence of a preexisting arbitration agreement, the court has no power, authority or jurisdiction to refer unwilling parties to arbitration. Therefore, the word agree in Section 21 of the Act refers to consensus ad idem between the parties who take a considered decision to forego their right of adjudication before a court where the suit is pending, and mutually agree to have the subject matter of the suit or part thereof adjudicated and decided by an arbitrator.18. In the present case, the application dated 23rd December 1994 was moved by the plaintiff and it was not signed by the defendant. As per the heading, the application was for the appointment of a commissioner/arbitrator to conduct an enquiry in respect of the accounts by a competent Chartered Accountant who shall act as a panch/Commissioner and submit a report after conducting an audit of the accounts. It was stated that the transactions between the parties are fairly large in number and, therefore, it is necessary to handover the aforesaid task to a Chartered Accountant. The application also states that for the enquiry regarding accounts an opportunity of hearing should be given to both the parties. Name of S.K. Mantri, Chartered Accountant, to act as panch/commissioner was proposed. The prayer in the application was that the panch/ commissioner would submit the report to the court after conducting an audit of the accounts. The application cannot be read as an application moved on a prior agreement or consensus for reference to arbitration.19. In view of the aforesaid discussion, we cannot read the application dated 23rd December 1994 as an application by the parties under Section 21 of the Arbitration Act. First, it is not an application for reference of disputes to an arbitrator for adjudication but a request for the appointment of an expert, that is, a Chartered Accountant, who would examine the accounts and papers and submit the report to facilitate the court. The role assigned to S.K. Mantri is also clear from the letter of appointment dated 23rd January 1995 which states that S.K. Mantri has been appointed as a panch and would be conducting an audit of all disputed accounts of both sides, and that he should send a report to the court (Distinction between an arbitrator and expert; and an arbitrator and a commissioner has been examined and discussed below). The letter also mentions that on receiving your remuneration report, payment would be made to you in the court. Secondly, the courts jurisdiction to finally decide was not questioned or annihilated. In fact, the court always remained in the picture, exercised parley as an adjudicator having dominion over the subject matter of the suit.It is, therefore, necessary for us examine the contents of the order. The first portion of the order records that the plaintiff has made an application for settlement of accounts and that the accounts can be examined only by a well-educated Chartered Accountant. A copy of the application had been handed over to the counsel for the defendant who had no objection to being appointed as Panch in this case. This statement is somewhat vague, but we do not read the statement as an indication or affirmation that the defendant had agreed to the appointment of an arbitrator as an alternative and substitute to court adjudication. If it was so, this should have been clearly stated to enable the parties to respond and make statement. At best it was restricted to the appointment of an expert/commissioner who would examine the accounts and submit his report.21. The second portion of the order dated 23rd December 1994 states that in the application name of Sushil Kumar, Chartered Account, as panch has been proposed to which no party had any objection. Thereafter, the order records the direction of the court that the fee of the arbitrator shall be as prescribed in the schedule of the Arbitration Council of India and if the arbitrator demands a fee the same should be equally shared by both the parties. The last portion does not incorporate and does not refer to any agreement or even concession given by the defendant agreeing to arbitration as an alternative to court adjudication and decision. The court had not disposed of the suit by referring the subject matter or a part of the subject matter of the suit to arbitration. In our opinion the said order is for issuing a commission as the court had accepted an application filed by the plaintiff for verification of the accounts. The commissioner was to act as an expert or facilitator for the court and submit a report to the court to help the court adjudicate and finally decide the suit.23. This Court in Kerala State Electricity Board and Another v. Kurien E. Kalathil and Another (2018) 4 SCC 793, had examined the question of reference to arbitration in a case where there was no arbitration agreement between the parties. The question that fell for consideration was whether the High Court was right to refer the parties to arbitration on oral consent given by the counsel without the written consent of the party whom he represents. In this context, reference was made to Section 89 of the Code and the decision of this Court in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. (2010) 8 SCC 24, which is to the following effect:33. Even if there was no pre-existing arbitration agreement, the parties to the suit can agree for arbitration when the choice of ADR processes is offered to them by the court under Section 89 of the Code. Such agreement can be by means of a joint memo or joint application or a joint affidavit before the court, or by record of the agreement by the court in the order-sheet signed by the parties. Once there is such an agreement in writing signed by parties, the matter can be referred to arbitration under Section 89 of the Code; and on such reference, the provisions of the AC Act will apply to the arbitration, and as noticed in Salem Bar (I), the case will go outside the stream of the court permanently and will not come back to the court.25. On the question whether a counsel can give consent for arbitration on behalf of the parties, Kerala State Electricity Board (supra) referred to the decision in Byram Pestonji Gariwala v. Union Bank of India, (1992) 1 SCC 31 which has settled the law that a counsel should not act on implied authority unless there is an exigency of circumstances demanding immediate adjustment of the suit by agreement or compromise and the signature of the party cannot be obtained without delay. Reference was made to paragraph 37 in Gariwala case (supra), which reads as under:37. We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication, such contingency may seldom arise. A wise and careful counsel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority nor integrity is ever doubted. This essential precaution willsafeguard the personal reputation of counsel as well as uphold the prestige and dignity of the legal profession.26. The Kerala State Electricity Board (supra) decision rightly records that referring the parties to arbitration has serious civil consequences, substantial and procedural. Once an award is passed, it can be only challenged on limited grounds. When there was no arbitration agreement between the parties, without joint application the High Court ought not to have referred the matter to arbitration. This Court in Bihar State Mineral Development Corpn. v. Encon Builders (I) (P) Ltd. (2003) 7 SCC 418 emphasised that the arbitration agreement must contain a broad consensus between the parties that the disputes and differences should be referred to a private tribunal. Further, such a tribunal must be an impartial one.27. In ITC Ltd. v. George Joseph Fernadez and Another, (1989) 2 SCC 1 this Court had interpreted Section 20 (20. Agreement void where both parties ..... deemed a mistake as to a matter of fact.) of the Contract Act, which provides that where both the parties to an agreement are under a mistake as to a matter of fact essential and integral to the agreement, the agreement is void. However, this does not apply if the mistake relates to an erroneous opinion as to the valuation of the thing that forms the subject matter of the agreement. A mistake as to the quality of an article or attributes on the other hand is a debatable question as it may not always lead to the conclusion that the contract is void. Further, this provision relating to the voidness of the contract does not apply to cases of a common mistake of fact, as distinguished from a mutual mistake made or entertained by each of the persons towards or with regard to each other. Where a party is mistaken as to the others intention, though neither realises that the respective promises have been misunderstood, there is a mutual mistake. The ascertainment of whether or not there was a mutual mistake is to be ascertained by applying what reasonable third parties would infer from their words or conduct. The mistake or error must be such that it either appears on the face of the contract that the matter as to which the mistake existed was an essential and integral element of the subject matter of the contract or was an inevitable inference from the nature of the contract that all parties so regarded it. A contract is void at law only if some term can be implied in both offer and acceptance, which prevents the contract from coming into force. These principles are relevant when the dispute arises as to the existence of a pre-existing arbitration agreement. Albeit in the case of Section 21, the requirement is even stricter – the parties interested agree…in writing before the court, which is an inflexible mandate which requires that the parties must agree, or affirm an agreement before the court to refer the subject matter as agreed to arbitration.28. This Court in K.K. Modi v. K.N. Modi and Others, (1998) 3 SCC 573 after referring to Mustill and Boyd in their book on Commercial Arbitration, pointed out that there is an immense variety of tribunals differing fundamentally as regards their composition, their functions and sources from which their powers are derived. Tribunals, including those which derive their jurisdiction from the consent of the parties, apart from the arbitration tribunal, may be persons who are not properly called tribunals, but by mutual consent entrusted with the power to affect the legal rights of two parties inter se in a manner creating legally enforceable rights to do so by a procedure of a ministerial but not judicial in nature, such as persons appointed by contract to value property or certify compliance of building works with the specification. Other examples given are of conciliation tribunals of local religious bodies or privately appointed persons to act as mediators. Such consent terms lack some of the attributes necessary for an arbitration agreement. The judgment enlists some of the attributes which must be present in an agreement to be considered as an arbitration agreement as:17... (1) The arbitration agreement must contemplate that the decision of the tribunal will be binding on the parties to the agreement,(2) that the jurisdiction of the tribunal to decide the rights of parties must derive either from the consent of the parties or from an order of the court or from a statute, the terms of which make it clear that the process is to be an arbitration,(3) the agreement must contemplate that substantive rights of parties will be determined by the agreed tribunal,(4) that the tribunal will determine the rights of the parties in an impartial and judicial manner with the tribunal owing an equal obligation of fairness towards both sides,(5) that the agreement of the parties to refer their disputes to the decision of the tribunal must be intended to be enforceable in law and lastly,(6) the agreement must contemplate that the tribunal will make a decision upon a dispute which is already formulated at the time when a reference is made to the tribunal.31. With regard to the significance and effect of the report submitted by an expert, this Court in Dayal Singh and Others v. State of Uttaranchal (2012) 8 SCC 263 states that the purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion. Such report is not binding upon the court. The court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. An expert report, duly proved, has its evidentiary value but such appreciation has to be within the limitations prescribed and with careful examination by the court. Simply put, an expert deposes and does not decide Murari Lal v. State of M.P. (1980) 1 SCC 704, his duty is to furnish the court with necessary scientific/technical criteria so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence (Vide Lord President Cooper in Davis v. Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross in his Evidence).35. The matter referred to S.K. Mantri was limited to examination of the accounts. The issues and questions of dispute in the suit were far broader and wider. These included questions as to the agreed price or the rate of transportation in view of the letter dated 05th June 1992, which was withdrawn by letter dated 30th September 1992, computation of the transportation costs payable to the plaintiff under the contract in case the coal delivered was within or beyond the 1% stipulation, whether or not the defendants were right in making deductions on account of bad quality coal, higher moisture content etc. whereby the weight of the coal had increased, delay in delivery on the part of the plaintiff, whether the defendants are entitled to charge interest while making recoveries, etc. It is interesting to note that the S.K. Mantri himself did not decide whether or not the plaintiff is entitled to rent of the plot or security charges observing that this was an aspect for the court to decide. However, he forgot that his jurisdiction was limited to checking and verifying accounts and not deciding any issue or questions beyond the accounts on issues and questions referred to above. | 1 | 8,364 | 3,465 | ### 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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examination or adjustment) of the Code. For submission to arbitration, there must be an arbitration agreement or an agreement in terms of Section 21 of the Act that the difference or dispute between the parties for which they intend to be determined in a quasi-judicial manner. Commissioners are appointed by the court. Appointment may be with consent of the parties, or even when there is objection to the appointment. Preexisting agreement or the requirement that the parties agree before the court, as is mandatory in case of arbitration, is not necessary when a court directs appointment of a commissioner. In the case of a reference to a commissioner, all that the parties expect from the commissioner is a valuation/ examination of the subject matter referred, which he would do according to his skill, knowledge and experience, which may be without taking any evidence or hearing argument (Halsbury, Vol.1, Edn. 2 at Pg. 622). In light of the aforesaid decisions, we would like to introduce the principle of a facilitator which a court may appoint, be it a commissioner or an expert, for a specific purpose and cause for ascertainment of a fact which may be even disputed. In some cases, the commissioner may even hear the parties and give his expert opinion based on the material or evidence produced by the parties before the commissioner, as in this case when the court appointed a Chartered Account who as an expert was required to give his opinion on the statement on accounts to facilitate and help the court arrive at a fair and just decision. It was to save the courts time and cut delay in the decision by the court. 33. Order XXVI Rule 9 of the Code gives wide powers to the court to appoint a commissioner to make local investigations which may be requisite or proper for elucidating any matter in dispute, ascertaining the market value of any property, account of mesne profit or damages or annual net profits. Under Order XXVI Rule 11, the court has the power to issue a commission in a suit, in which examination of adjustment of accounts is necessary, to a person as it thinks fit directing him to make such examination or adjustment. When a court issues such a commission to such a person, it can direct the commissioner to make such an investigation, examination and adjustment and submit a report thereon to the court. The commissioner so appointed does not strictly perform a judicial act which is binding but only a ministerial act. Nothing is left to the commissioners discretion, and there is no occasion to use his judgment or permitting the commissioner to adjudicate and decide the issue involved; the commissioners report is only an opinion or noting, as the case may be with the details and/or statement to the court the actual state of affairs. Such a report does not automatically form part of the courts opinion, as the court has the power to confirm, vary or set aside the report or in a given case issue a new commission. Hence, there is neither abdication nor delegation of the powers of functions of the court to decide the issue. Sometimes, on examination of the commissioner, the report forms part of the record and evidence A. Nagarajan v. A. Madhanakumar 1996 SCC OnLine Mad 17. The parties can contest an expert opinion/commissioners report, and the court, after hearing objections, can determine whether or not it should rely upon such an expert opinion/commissioners report. Even if the court relies upon the same, it will merely aid and not bind the court. In strict sense, the commissioners reports are non-adjudicatory in nature, and the courts adjudicate upon the rights of the parties. 34. By Act 18 of 2018, Section14A [14A. Power of court to engage experts.—(1) Without ..... and at such time, as the court may direct.] has been inserted in the Specific Relief Act, 1963. The provision states that without prejudice to the provisions of the Code in any suit under the Act in question where a court considers it necessary to get expert opinion to assess it on a specific issue involved in the suit, it may engage one or more experts and direct to report to it on such issue. The court may secure the experts attendance for providing evidence, including the production of documents on the issue. The opinion or report of the expert would form part of the record of the suit as is the case with the commissioners report. With the courts permission, the parties to the suit may examine the expert personally in the open court on any of the matters referred to him or as to his opinion or report or as to the manner in which he has made the inspection. 35. The matter referred to S.K. Mantri was limited to examination of the accounts. The issues and questions of dispute in the suit were far broader and wider. These included questions as to the agreed price or the rate of transportation in view of the letter dated 05th June 1992, which was withdrawn by letter dated 30th September 1992, computation of the transportation costs payable to the plaintiff under the contract in case the coal delivered was within or beyond the 1% stipulation, whether or not the defendants were right in making deductions on account of bad quality coal, higher moisture content etc. whereby the weight of the coal had increased, delay in delivery on the part of the plaintiff, whether the defendants are entitled to charge interest while making recoveries, etc. It is interesting to note that the S.K. Mantri himself did not decide whether or not the plaintiff is entitled to rent of the plot or security charges observing that this was an aspect for the court to decide. However, he forgot that his jurisdiction was limited to checking and verifying accounts and not deciding any issue or questions beyond the accounts on issues and questions referred to above.
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conclusion that the contract is void. Further, this provision relating to the voidness of the contract does not apply to cases of a common mistake of fact, as distinguished from a mutual mistake made or entertained by each of the persons towards or with regard to each other. Where a party is mistaken as to the others intention, though neither realises that the respective promises have been misunderstood, there is a mutual mistake. The ascertainment of whether or not there was a mutual mistake is to be ascertained by applying what reasonable third parties would infer from their words or conduct. The mistake or error must be such that it either appears on the face of the contract that the matter as to which the mistake existed was an essential and integral element of the subject matter of the contract or was an inevitable inference from the nature of the contract that all parties so regarded it. A contract is void at law only if some term can be implied in both offer and acceptance, which prevents the contract from coming into force. These principles are relevant when the dispute arises as to the existence of a pre-existing arbitration agreement. Albeit in the case of Section 21, the requirement is even stricter – the parties interested agree…in writing before the court, which is an inflexible mandate which requires that the parties must agree, or affirm an agreement before the court to refer the subject matter as agreed to arbitration.28. This Court in K.K. Modi v. K.N. Modi and Others, (1998) 3 SCC 573 after referring to Mustill and Boyd in their book on Commercial Arbitration, pointed out that there is an immense variety of tribunals differing fundamentally as regards their composition, their functions and sources from which their powers are derived. Tribunals, including those which derive their jurisdiction from the consent of the parties, apart from the arbitration tribunal, may be persons who are not properly called tribunals, but by mutual consent entrusted with the power to affect the legal rights of two parties inter se in a manner creating legally enforceable rights to do so by a procedure of a ministerial but not judicial in nature, such as persons appointed by contract to value property or certify compliance of building works with the specification. Other examples given are of conciliation tribunals of local religious bodies or privately appointed persons to act as mediators. Such consent terms lack some of the attributes necessary for an arbitration agreement. The judgment enlists some of the attributes which must be present in an agreement to be considered as an arbitration agreement as:17... (1) The arbitration agreement must contemplate that the decision of the tribunal will be binding on the parties to the agreement,(2) that the jurisdiction of the tribunal to decide the rights of parties must derive either from the consent of the parties or from an order of the court or from a statute, the terms of which make it clear that the process is to be an arbitration,(3) the agreement must contemplate that substantive rights of parties will be determined by the agreed tribunal,(4) that the tribunal will determine the rights of the parties in an impartial and judicial manner with the tribunal owing an equal obligation of fairness towards both sides,(5) that the agreement of the parties to refer their disputes to the decision of the tribunal must be intended to be enforceable in law and lastly,(6) the agreement must contemplate that the tribunal will make a decision upon a dispute which is already formulated at the time when a reference is made to the tribunal.31. With regard to the significance and effect of the report submitted by an expert, this Court in Dayal Singh and Others v. State of Uttaranchal (2012) 8 SCC 263 states that the purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion. Such report is not binding upon the court. The court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. An expert report, duly proved, has its evidentiary value but such appreciation has to be within the limitations prescribed and with careful examination by the court. Simply put, an expert deposes and does not decide Murari Lal v. State of M.P. (1980) 1 SCC 704, his duty is to furnish the court with necessary scientific/technical criteria so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence (Vide Lord President Cooper in Davis v. Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross in his Evidence).35. The matter referred to S.K. Mantri was limited to examination of the accounts. The issues and questions of dispute in the suit were far broader and wider. These included questions as to the agreed price or the rate of transportation in view of the letter dated 05th June 1992, which was withdrawn by letter dated 30th September 1992, computation of the transportation costs payable to the plaintiff under the contract in case the coal delivered was within or beyond the 1% stipulation, whether or not the defendants were right in making deductions on account of bad quality coal, higher moisture content etc. whereby the weight of the coal had increased, delay in delivery on the part of the plaintiff, whether the defendants are entitled to charge interest while making recoveries, etc. It is interesting to note that the S.K. Mantri himself did not decide whether or not the plaintiff is entitled to rent of the plot or security charges observing that this was an aspect for the court to decide. However, he forgot that his jurisdiction was limited to checking and verifying accounts and not deciding any issue or questions beyond the accounts on issues and questions referred to above.
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M/S Palam Gas Service Vs. Commissioner Of Income Tax | Certain consequences of failure to deduct tax at source from the payments made, where tax was to be deducted at source or failure to pay the same to the credit of the Central Government, are stipulated in Section 201 of the Act. This Section provides that in that contingency, such a person would be deemed to be an assessee in default in respect of such tax. While stipulating this consequence, Section 201 categorically states that the aforesaid Sections would be without prejudice to any other consequences which that defaulter may incur. Other consequences are provided under Section 40(a)(ia) of the Act, namely, payments made by such a person to a contractor shall not be treated as deductible expenditure. When read in this context, it is clear that Section 40(a)(ia) deals with the nature of default and the consequences thereof. Default is relatable to Chapter XVIIB (in the instant case Sections 194C and 200, which provisions are in the aforesaid Chapter). When the entire scheme of obligation to deduct the tax at source and paying it over to the Central Government is read holistically, it cannot be held that the word payable occurring in Section 40(a)(ia) refers to only those cases where the amount is yet to be paid and does not cover the cases where the amount is actually paid. If the provision is interpreted in the manner suggested by the appellant herein, then even when it is found that a person, like the appellant, has violated the provisions of Chapter XVIIB (or specifically Sections 194C and 200 in the instant case), he would still go scot free, without suffering the consequences of such monetary default in spite of specific provisions laying down these consequences. The Punjab & Haryana High Court has exhaustively interpreted Section 40(a(ia) keeping in mind different aspects. We would again quote the following paragraphs from the said judgment, with our complete approval thereto:"26. Further, the mere incurring of a liability does not require an assessee to deduct the tax at source even if such payments, if made, would require an assessee to deduct the tax at source. The liability to deduct tax at source under Chapter XVII-B arises only upon payments being made or where so specified under the sections in Chapter XVII, the amount is credited to the account of the payee. In other words, the liability to deduct tax at source arises not on account of the assessee being liable to the payee but only upon the liability being discharged in the case of an assessee following the cash system and upon credit being given by an assessee following the mercantile system. This is clear from every section in Chapter XVII.27. Take for instance, the case of an assessee, who follows the cash system of accounting and where the assessee who though liable to pay the contractor, fails to do so for any reason. The assessee is not then liable to deduct tax at source. Take also the case of an assessee, who follows the mercantile system. Such an assessee may have incurred the liability to pay amounts to a party. Such an assessee is also not bound to deduct tax at source unless he credits such sums to the account of the party/payee, such as, a contractor. This is clear from Section 194C set out earlier. The liability to deduct tax at source, in the case of an assessee following the cash system, arises only when the payment is made and in the case of an assessee following the mercantile system, when he credits such sum to the account of the party entitled to receive the payment.28. The government has nothing to do with the dispute between the assessee and the payee such as a contractor. The provisions of the Act including Section 40 and the provisions of Chapter XVII do not entitle the tax authorities to adjudicate the liability of an assessee to make payment to the payee/other contracting party. The appellants submission, if accepted, would require an adjudication by the tax authorities as to the liability of the assessee to make payment. They would then be required to investigate all the records of an assessee to ascertain its liability to third parties. This could in many cases be an extremely complicated task especially in the absence of the third party. The third party may not press the claim. The parties may settle the dispute, if any. This is an exercise not even remotely required or even contemplated by the section."16. As mentioned above, the Punjab & Haryana High Court found support from the judgments of the Madras and Calcutta High Courts taking identical view and by extensively quoting from the said judgments.17. Insofar as judgment of the Allahabad High Court is concerned, reading thereof would reflect that the High Court, after noticing the fact that since the amounts had already been paid, it straightaway concluded, without any discussion, that Section 40(a)(ia) would apply only when the amount is payable and dismissed the appeal of the Department stating that the question of law framed did not arise for consideration. No doubt, the Special Leave Petition thereagainst was dismissed by this Court in limine. However, that would not amount to confirming the view of the Allahabad High Court (See V.M. Salgaocar & Bros. (P) Ltd. v. Commissioner of Income Tax, (2000) 243 ITR 383 and Supreme Court Employees Welfare Association v. Union of India, (1989) 4 SCC 187. 18. In view of the aforesaid discussion, we hold that the view taken by the High Courts of Punjab & Haryana, Madras and Calcutta is the correct view and the judgment of the Allahabad High Court in CIT v. Vector Shipping Services (P) Ltd., (2013) 357 ITR 642 did not decide the question of law correctly. Thus, insofar as the judgment of the Allahabad High Court is concerned, we overrule the same. Consequences of the aforesaid discussion will be to answer the question against the appellant/assessee thereby approving the view taken by the High Court. | 0[ds]13. The aforesaid interpretation of Sections 194C conjointly with Section 200 and Rule 30(2) is unblemished and without any iota of doubt. We, thus, give our imprimatur to the view taken. As would be noticed and discussed in little detail hereinafter, the Allahabad High Court, while interpreting Section 40(a)(ia), did not deal with this aspect at all, even when it has a clear bearing while considering the amplitude of the said provision.14. In the aforesaid backdrop, let us now deal with the issue, namely, the word payable in Section 40(a)(ia) would mean only when the amount is payable and not when it is actually paid. Grammatically, it may be accepted that the two words, i.e. payable and paid, denote different meanings. The Punjab & Haryana High Court, in P.M.S. Diesels & Ors., referred to above, rightly remarked that the word payable is, in fact, an antonym of the word paid. At the same time, it took the view that it was not significant to the interpretation of Section 40(a)(ia). Discussing this aspect further, the Punjab & Haryana High Court first dealt with the contention of the assessee that Section 40(a)(ia) relates only to those assessees who follow the mercantile system and does not cover the cases where the assessees follow the cash system.We approve the aforesaid view as well. As a fortiorari, it follows that Section 40(a)(ia) covers not only those cases where the amount is payable but also when it is paid. In this behalf, one has to keep in mind the purpose with which Section 40 was enacted and that has already been noted above. We have also to keep in mind the provisions of Sections 194C and 200. Once it is found that the aforesaid Sections mandate a person to deduct tax at source not only on the amounts payable but also when the sums are actually paid to the contractor, any person who does not adhere to this statutory obligation has to suffer the consequences which are stipulated in the Act itself. Certain consequences of failure to deduct tax at source from the payments made, where tax was to be deducted at source or failure to pay the same to the credit of the Central Government, are stipulated in Section 201 of the Act. This Section provides that in that contingency, such a person would be deemed to be an assessee in default in respect of such tax. While stipulating this consequence, Section 201 categorically states that the aforesaid Sections would be without prejudice to any other consequences which that defaulter may incur. Other consequences are provided under Section 40(a)(ia) of the Act, namely, payments made by such a person to a contractor shall not be treated as deductible expenditure. When read in this context, it is clear that Section 40(a)(ia) deals with the nature of default and the consequences thereof. Default is relatable to Chapter XVIIB (in the instant case Sections 194C and 200, which provisions are in the aforesaid Chapter). When the entire scheme of obligation to deduct the tax at source and paying it over to the Central Government is read holistically, it cannot be held that the word payable occurring in Section 40(a)(ia) refers to only those cases where the amount is yet to be paid and does not cover the cases where the amount is actually paid. If the provision is interpreted in the manner suggested by the appellant herein, then even when it is found that a person, like the appellant, has violated the provisions of Chapter XVIIB (or specifically Sections 194C and 200 in the instant case), he would still go scot free, without suffering the consequences of such monetary default in spite of specific provisions laying down these consequences. The Punjab & Haryana High Court has exhaustively interpreted Section 40(a(ia) keeping in mind different aspects.Insofar as judgment of the Allahabad High Court is concerned, reading thereof would reflect that the High Court, after noticing the fact that since the amounts had already been paid, it straightaway concluded, without any discussion, that Section 40(a)(ia) would apply only when the amount is payable and dismissed the appeal of the Department stating that the question of law framed did not arise for consideration. No doubt, the Special Leave Petition thereagainst was dismissed by this Court in limine. However, that would not amount to confirming the view of the Allahabad High Court (See V.M. Salgaocar & Bros. (P) Ltd. v. Commissioner of Income Tax, (2000) 243 ITR 383 and Supreme Court Employees Welfare Association v. Union of India, (1989) 4 SCC 187. 18. In view of the aforesaid discussion, we hold that the view taken by the High Courts of Punjab & Haryana, Madras and Calcutta is the correct view and the judgment of the Allahabad High Court in CIT v. Vector Shipping Services (P) Ltd., (2013) 357 ITR 642 did not decide the question of law correctly. Thus, insofar as the judgment of the Allahabad High Court is concerned, we overrule the same. Consequences of the aforesaid discussion will be to answer the question against the appellant/assessee thereby approving the view taken by the High Court. | 0 | 4,875 | 1,018 | ### 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:
Certain consequences of failure to deduct tax at source from the payments made, where tax was to be deducted at source or failure to pay the same to the credit of the Central Government, are stipulated in Section 201 of the Act. This Section provides that in that contingency, such a person would be deemed to be an assessee in default in respect of such tax. While stipulating this consequence, Section 201 categorically states that the aforesaid Sections would be without prejudice to any other consequences which that defaulter may incur. Other consequences are provided under Section 40(a)(ia) of the Act, namely, payments made by such a person to a contractor shall not be treated as deductible expenditure. When read in this context, it is clear that Section 40(a)(ia) deals with the nature of default and the consequences thereof. Default is relatable to Chapter XVIIB (in the instant case Sections 194C and 200, which provisions are in the aforesaid Chapter). When the entire scheme of obligation to deduct the tax at source and paying it over to the Central Government is read holistically, it cannot be held that the word payable occurring in Section 40(a)(ia) refers to only those cases where the amount is yet to be paid and does not cover the cases where the amount is actually paid. If the provision is interpreted in the manner suggested by the appellant herein, then even when it is found that a person, like the appellant, has violated the provisions of Chapter XVIIB (or specifically Sections 194C and 200 in the instant case), he would still go scot free, without suffering the consequences of such monetary default in spite of specific provisions laying down these consequences. The Punjab & Haryana High Court has exhaustively interpreted Section 40(a(ia) keeping in mind different aspects. We would again quote the following paragraphs from the said judgment, with our complete approval thereto:"26. Further, the mere incurring of a liability does not require an assessee to deduct the tax at source even if such payments, if made, would require an assessee to deduct the tax at source. The liability to deduct tax at source under Chapter XVII-B arises only upon payments being made or where so specified under the sections in Chapter XVII, the amount is credited to the account of the payee. In other words, the liability to deduct tax at source arises not on account of the assessee being liable to the payee but only upon the liability being discharged in the case of an assessee following the cash system and upon credit being given by an assessee following the mercantile system. This is clear from every section in Chapter XVII.27. Take for instance, the case of an assessee, who follows the cash system of accounting and where the assessee who though liable to pay the contractor, fails to do so for any reason. The assessee is not then liable to deduct tax at source. Take also the case of an assessee, who follows the mercantile system. Such an assessee may have incurred the liability to pay amounts to a party. Such an assessee is also not bound to deduct tax at source unless he credits such sums to the account of the party/payee, such as, a contractor. This is clear from Section 194C set out earlier. The liability to deduct tax at source, in the case of an assessee following the cash system, arises only when the payment is made and in the case of an assessee following the mercantile system, when he credits such sum to the account of the party entitled to receive the payment.28. The government has nothing to do with the dispute between the assessee and the payee such as a contractor. The provisions of the Act including Section 40 and the provisions of Chapter XVII do not entitle the tax authorities to adjudicate the liability of an assessee to make payment to the payee/other contracting party. The appellants submission, if accepted, would require an adjudication by the tax authorities as to the liability of the assessee to make payment. They would then be required to investigate all the records of an assessee to ascertain its liability to third parties. This could in many cases be an extremely complicated task especially in the absence of the third party. The third party may not press the claim. The parties may settle the dispute, if any. This is an exercise not even remotely required or even contemplated by the section."16. As mentioned above, the Punjab & Haryana High Court found support from the judgments of the Madras and Calcutta High Courts taking identical view and by extensively quoting from the said judgments.17. Insofar as judgment of the Allahabad High Court is concerned, reading thereof would reflect that the High Court, after noticing the fact that since the amounts had already been paid, it straightaway concluded, without any discussion, that Section 40(a)(ia) would apply only when the amount is payable and dismissed the appeal of the Department stating that the question of law framed did not arise for consideration. No doubt, the Special Leave Petition thereagainst was dismissed by this Court in limine. However, that would not amount to confirming the view of the Allahabad High Court (See V.M. Salgaocar & Bros. (P) Ltd. v. Commissioner of Income Tax, (2000) 243 ITR 383 and Supreme Court Employees Welfare Association v. Union of India, (1989) 4 SCC 187. 18. In view of the aforesaid discussion, we hold that the view taken by the High Courts of Punjab & Haryana, Madras and Calcutta is the correct view and the judgment of the Allahabad High Court in CIT v. Vector Shipping Services (P) Ltd., (2013) 357 ITR 642 did not decide the question of law correctly. Thus, insofar as the judgment of the Allahabad High Court is concerned, we overrule the same. Consequences of the aforesaid discussion will be to answer the question against the appellant/assessee thereby approving the view taken by the High Court.
### Response:
0
### Explanation:
13. The aforesaid interpretation of Sections 194C conjointly with Section 200 and Rule 30(2) is unblemished and without any iota of doubt. We, thus, give our imprimatur to the view taken. As would be noticed and discussed in little detail hereinafter, the Allahabad High Court, while interpreting Section 40(a)(ia), did not deal with this aspect at all, even when it has a clear bearing while considering the amplitude of the said provision.14. In the aforesaid backdrop, let us now deal with the issue, namely, the word payable in Section 40(a)(ia) would mean only when the amount is payable and not when it is actually paid. Grammatically, it may be accepted that the two words, i.e. payable and paid, denote different meanings. The Punjab & Haryana High Court, in P.M.S. Diesels & Ors., referred to above, rightly remarked that the word payable is, in fact, an antonym of the word paid. At the same time, it took the view that it was not significant to the interpretation of Section 40(a)(ia). Discussing this aspect further, the Punjab & Haryana High Court first dealt with the contention of the assessee that Section 40(a)(ia) relates only to those assessees who follow the mercantile system and does not cover the cases where the assessees follow the cash system.We approve the aforesaid view as well. As a fortiorari, it follows that Section 40(a)(ia) covers not only those cases where the amount is payable but also when it is paid. In this behalf, one has to keep in mind the purpose with which Section 40 was enacted and that has already been noted above. We have also to keep in mind the provisions of Sections 194C and 200. Once it is found that the aforesaid Sections mandate a person to deduct tax at source not only on the amounts payable but also when the sums are actually paid to the contractor, any person who does not adhere to this statutory obligation has to suffer the consequences which are stipulated in the Act itself. Certain consequences of failure to deduct tax at source from the payments made, where tax was to be deducted at source or failure to pay the same to the credit of the Central Government, are stipulated in Section 201 of the Act. This Section provides that in that contingency, such a person would be deemed to be an assessee in default in respect of such tax. While stipulating this consequence, Section 201 categorically states that the aforesaid Sections would be without prejudice to any other consequences which that defaulter may incur. Other consequences are provided under Section 40(a)(ia) of the Act, namely, payments made by such a person to a contractor shall not be treated as deductible expenditure. When read in this context, it is clear that Section 40(a)(ia) deals with the nature of default and the consequences thereof. Default is relatable to Chapter XVIIB (in the instant case Sections 194C and 200, which provisions are in the aforesaid Chapter). When the entire scheme of obligation to deduct the tax at source and paying it over to the Central Government is read holistically, it cannot be held that the word payable occurring in Section 40(a)(ia) refers to only those cases where the amount is yet to be paid and does not cover the cases where the amount is actually paid. If the provision is interpreted in the manner suggested by the appellant herein, then even when it is found that a person, like the appellant, has violated the provisions of Chapter XVIIB (or specifically Sections 194C and 200 in the instant case), he would still go scot free, without suffering the consequences of such monetary default in spite of specific provisions laying down these consequences. The Punjab & Haryana High Court has exhaustively interpreted Section 40(a(ia) keeping in mind different aspects.Insofar as judgment of the Allahabad High Court is concerned, reading thereof would reflect that the High Court, after noticing the fact that since the amounts had already been paid, it straightaway concluded, without any discussion, that Section 40(a)(ia) would apply only when the amount is payable and dismissed the appeal of the Department stating that the question of law framed did not arise for consideration. No doubt, the Special Leave Petition thereagainst was dismissed by this Court in limine. However, that would not amount to confirming the view of the Allahabad High Court (See V.M. Salgaocar & Bros. (P) Ltd. v. Commissioner of Income Tax, (2000) 243 ITR 383 and Supreme Court Employees Welfare Association v. Union of India, (1989) 4 SCC 187. 18. In view of the aforesaid discussion, we hold that the view taken by the High Courts of Punjab & Haryana, Madras and Calcutta is the correct view and the judgment of the Allahabad High Court in CIT v. Vector Shipping Services (P) Ltd., (2013) 357 ITR 642 did not decide the question of law correctly. Thus, insofar as the judgment of the Allahabad High Court is concerned, we overrule the same. Consequences of the aforesaid discussion will be to answer the question against the appellant/assessee thereby approving the view taken by the High Court.
|
Ram Narain Vs. State of Uttar Pradesh | the complainant in a case like this, i.e., in a case in which no handwriting expert had been examined in support of his statement."It was emphasised by the appellants learned counsel that according to this decision it is not safe to record a finding about a persons writing merely on the basis of comparison because the opinion of a handwriting expert is not conclusive and his evidence is normally insufficient for recording a definite finding about the writing being of a certain person or not. Indeed the appellants contention was that in Fakhruddins case (AIR 1967 SC 1326 ) (supra) though reference was made to this decision, its ratio was not properly appreciated and the decision in Fakhruddin (supra) is not in conformity with this earlier decision. We are unable to agree with this submission. Reference was also made by the appellants counsel to Shashi Kumar (AIR 1964 SC 529 ) (supra) where it is observed that the expert evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence and therefore before acting on it the courts usually look for corroboration either by direct or circumstantial evidence. In Shashi Kumar (supra), it may be pointed out, this Court found all the probabilities against the expert opinion and the direct testimony of two witnesses accepted by this Court also wholly inconsistent with that opinion.4. In our view, the legal position enunciated in Fakhruddin (AIR 1967 SC 1326 ) (supra) cannot be said to be inconsistent with the ratio of any one of the earlier decisions to which reference has been made therein. Now it is no doubt true that the opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert. If after comparison of the disputed and the admitted writings by the court itself, when the Presiding Officer is familiar with that language, it is considered safe to accept the opinion of the expert then the conclusion so arrived at cannot be assailed on special leave on the mere ground that comparison of handwriting is generally considered as hazardous and inclusive and that the opinion of the handwriting expert has to be received with considerable caution. The question in each case falls for determination on the appreciation of evidence and unless some serious infirmity or grave failure of justice is shown, this Court would normally refrain from reappraising the matter on appeal by special leave. The trial Court in this case agreeing with the principle of law enunciated by this Court compared the relevant documents and arrived at the conclusion that they have all been written in one hand. The learned II Temporary Sessions Judge on appeal, after referring to the comparison of the disputed and specimen writings by the trial Magistrate, himself compared those writings with the help of the experts opinion and his report and came to a definite conclusion "that the disputed handwritings tally with the specimen handwriting". In the High Court also the learned Single Judge, after referring to the decision in Fakhruddin (supra), observed as follows: -"I have myself made a comparison of the specimen writing of the applicant with the writing contained in the two letters. I have not the least doubt that the writing in the post-card and the writing in the admitted writing of the applicant are the same. Thus, I have no reason to differ from the finding recorded by the courts below."No serious attempt was made on behalf of the appellant to find fault with the approach of the three courts below. There is, therefore, no ground made out for interference by this Court with the appellants conviction. Unfortunately, the record is not before us otherwise we would have also tried to examine for ourselves the disputed and the specimen handwritings. However, in view of the concurrent decisions of the three courts below we did not consider it necessary to adjourn the hearing of this case to have the documents before us for our examination.5. The next question is one of sentence which is always a matter of some difficulty. It generally poses a complex problem which requires a working compromise between the competing views based on reformative, deterrent and retributive theories of punishments. Though a 1arge number of factors fall for consideration in determining the appropriate sentence, the broad object of punishment of an accused found guilty in progressive civilized societies is to impress on the guilty party that commission of crime does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs. The sentence to be appropriate should, therefore, be neither too harsh nor too lenient. In the case in hand the imposition of rigorous imprisonment for one Year upheld by the appellate and the revisional courts may not have been considered by us in the normal course to be too harsh calling for interference under Article 136 of the Constitution. The difficulty now posed is that the appellant is on bail and he has served out only one months sentence. He was originally sentenced by the trial Court on April 17, 1967 for the offence committed as far back as l964. The proceedings against him have lasted for more than 8 Years. He was released on bail by this Court in January, 1970. To send him back to jail now after the lapse of so many years for serving out the remaining period of sentence seems to us on the facts and circumstances of this case to be somewhat harsh. The offence of attempted extortion undoubtedly reflects to some extent anti-social depravity of mind but the attempt did not succeed. | 1[ds]We are unable to agree with this submission. Reference was also made by the appellants counsel to Shashi Kumar (AIR 1964 SC 529 ) (supra) where it is observed that the expert evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence and therefore before acting on it the courts usually look for corroboration either by direct or circumstantial evidence. In Shashi Kumar (supra), it may be pointed out, this Court found all the probabilities against the expert opinion and the direct testimony of two witnesses accepted by this Court also wholly inconsistent with that opinion.4. In our view, the legal position enunciated in Fakhruddin (AIR 1967 SC 1326 ) (supra) cannot be said to be inconsistent with the ratio of any one of the earlier decisions to which reference has been made therein. Now it is no doubt true that the opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert. If after comparison of the disputed and the admitted writings by the court itself, when the Presiding Officer is familiar with that language, it is considered safe to accept the opinion of the expert then the conclusion so arrived at cannot be assailed on special leave on the mere ground that comparison of handwriting is generally considered as hazardous and inclusive and that the opinion of the handwriting expert has to be received with considerable caution. The question in each case falls for determination on the appreciation of evidence and unless some serious infirmity or grave failure of justice is shown, this Court would normally refrain from reappraising the matter on appeal by special leave. The trial Court in this case agreeing with the principle of law enunciated by this Court compared the relevant documents and arrived at the conclusion that they have all been written in one hand. The learned II Temporary Sessions Judge on appeal, after referring to the comparison of the disputed and specimen writings by the trial Magistrate, himself compared those writings with the help of the experts opinion and his report and came to a definite conclusion "that the disputed handwritings tally with the specimenserious attempt was made on behalf of the appellant to find fault with the approach of the three courts below. There is, therefore, no ground made out for interference by this Court with the appellants conviction. Unfortunately, the record is not before us otherwise we would have also tried to examine for ourselves the disputed and the specimen handwritings. However, in view of the concurrent decisions of the three courts below we did not consider it necessary to adjourn the hearing of this case to have the documents before us for ourgenerally poses a complex problem which requires a working compromise between the competing views based on reformative, deterrent and retributive theories of punishments. Though a 1arge number of factors fall for consideration in determining the appropriate sentence, the broad object of punishment of an accused found guilty in progressive civilized societies is to impress on the guilty party that commission of crime does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs. The sentence to be appropriate should, therefore, be neither too harsh nor too lenient. In the case in hand the imposition of rigorous imprisonment for one Year upheld by the appellate and the revisional courts may not have been considered by us in the normal course to be too harsh calling for interference under Article 136 of the Constitution. The difficulty now posed is that the appellant is on bail and he has served out only one months sentence. He was originally sentenced by the trial Court on April 17, 1967 for the offence committed as far back as l964. The proceedings against him have lasted for more than 8 Years. He was released on bail by this Court in January, 1970. To send him back to jail now after the lapse of so many years for serving out the remaining period of sentence seems to us on the facts and circumstances of this case to be somewhat harsh. The offence of attempted extortion undoubtedly reflects to some extentdepravity of mind but the attempt did not succeed. | 1 | 2,640 | 829 | ### 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 complainant in a case like this, i.e., in a case in which no handwriting expert had been examined in support of his statement."It was emphasised by the appellants learned counsel that according to this decision it is not safe to record a finding about a persons writing merely on the basis of comparison because the opinion of a handwriting expert is not conclusive and his evidence is normally insufficient for recording a definite finding about the writing being of a certain person or not. Indeed the appellants contention was that in Fakhruddins case (AIR 1967 SC 1326 ) (supra) though reference was made to this decision, its ratio was not properly appreciated and the decision in Fakhruddin (supra) is not in conformity with this earlier decision. We are unable to agree with this submission. Reference was also made by the appellants counsel to Shashi Kumar (AIR 1964 SC 529 ) (supra) where it is observed that the expert evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence and therefore before acting on it the courts usually look for corroboration either by direct or circumstantial evidence. In Shashi Kumar (supra), it may be pointed out, this Court found all the probabilities against the expert opinion and the direct testimony of two witnesses accepted by this Court also wholly inconsistent with that opinion.4. In our view, the legal position enunciated in Fakhruddin (AIR 1967 SC 1326 ) (supra) cannot be said to be inconsistent with the ratio of any one of the earlier decisions to which reference has been made therein. Now it is no doubt true that the opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert. If after comparison of the disputed and the admitted writings by the court itself, when the Presiding Officer is familiar with that language, it is considered safe to accept the opinion of the expert then the conclusion so arrived at cannot be assailed on special leave on the mere ground that comparison of handwriting is generally considered as hazardous and inclusive and that the opinion of the handwriting expert has to be received with considerable caution. The question in each case falls for determination on the appreciation of evidence and unless some serious infirmity or grave failure of justice is shown, this Court would normally refrain from reappraising the matter on appeal by special leave. The trial Court in this case agreeing with the principle of law enunciated by this Court compared the relevant documents and arrived at the conclusion that they have all been written in one hand. The learned II Temporary Sessions Judge on appeal, after referring to the comparison of the disputed and specimen writings by the trial Magistrate, himself compared those writings with the help of the experts opinion and his report and came to a definite conclusion "that the disputed handwritings tally with the specimen handwriting". In the High Court also the learned Single Judge, after referring to the decision in Fakhruddin (supra), observed as follows: -"I have myself made a comparison of the specimen writing of the applicant with the writing contained in the two letters. I have not the least doubt that the writing in the post-card and the writing in the admitted writing of the applicant are the same. Thus, I have no reason to differ from the finding recorded by the courts below."No serious attempt was made on behalf of the appellant to find fault with the approach of the three courts below. There is, therefore, no ground made out for interference by this Court with the appellants conviction. Unfortunately, the record is not before us otherwise we would have also tried to examine for ourselves the disputed and the specimen handwritings. However, in view of the concurrent decisions of the three courts below we did not consider it necessary to adjourn the hearing of this case to have the documents before us for our examination.5. The next question is one of sentence which is always a matter of some difficulty. It generally poses a complex problem which requires a working compromise between the competing views based on reformative, deterrent and retributive theories of punishments. Though a 1arge number of factors fall for consideration in determining the appropriate sentence, the broad object of punishment of an accused found guilty in progressive civilized societies is to impress on the guilty party that commission of crime does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs. The sentence to be appropriate should, therefore, be neither too harsh nor too lenient. In the case in hand the imposition of rigorous imprisonment for one Year upheld by the appellate and the revisional courts may not have been considered by us in the normal course to be too harsh calling for interference under Article 136 of the Constitution. The difficulty now posed is that the appellant is on bail and he has served out only one months sentence. He was originally sentenced by the trial Court on April 17, 1967 for the offence committed as far back as l964. The proceedings against him have lasted for more than 8 Years. He was released on bail by this Court in January, 1970. To send him back to jail now after the lapse of so many years for serving out the remaining period of sentence seems to us on the facts and circumstances of this case to be somewhat harsh. The offence of attempted extortion undoubtedly reflects to some extent anti-social depravity of mind but the attempt did not succeed.
### Response:
1
### Explanation:
We are unable to agree with this submission. Reference was also made by the appellants counsel to Shashi Kumar (AIR 1964 SC 529 ) (supra) where it is observed that the expert evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence and therefore before acting on it the courts usually look for corroboration either by direct or circumstantial evidence. In Shashi Kumar (supra), it may be pointed out, this Court found all the probabilities against the expert opinion and the direct testimony of two witnesses accepted by this Court also wholly inconsistent with that opinion.4. In our view, the legal position enunciated in Fakhruddin (AIR 1967 SC 1326 ) (supra) cannot be said to be inconsistent with the ratio of any one of the earlier decisions to which reference has been made therein. Now it is no doubt true that the opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert. If after comparison of the disputed and the admitted writings by the court itself, when the Presiding Officer is familiar with that language, it is considered safe to accept the opinion of the expert then the conclusion so arrived at cannot be assailed on special leave on the mere ground that comparison of handwriting is generally considered as hazardous and inclusive and that the opinion of the handwriting expert has to be received with considerable caution. The question in each case falls for determination on the appreciation of evidence and unless some serious infirmity or grave failure of justice is shown, this Court would normally refrain from reappraising the matter on appeal by special leave. The trial Court in this case agreeing with the principle of law enunciated by this Court compared the relevant documents and arrived at the conclusion that they have all been written in one hand. The learned II Temporary Sessions Judge on appeal, after referring to the comparison of the disputed and specimen writings by the trial Magistrate, himself compared those writings with the help of the experts opinion and his report and came to a definite conclusion "that the disputed handwritings tally with the specimenserious attempt was made on behalf of the appellant to find fault with the approach of the three courts below. There is, therefore, no ground made out for interference by this Court with the appellants conviction. Unfortunately, the record is not before us otherwise we would have also tried to examine for ourselves the disputed and the specimen handwritings. However, in view of the concurrent decisions of the three courts below we did not consider it necessary to adjourn the hearing of this case to have the documents before us for ourgenerally poses a complex problem which requires a working compromise between the competing views based on reformative, deterrent and retributive theories of punishments. Though a 1arge number of factors fall for consideration in determining the appropriate sentence, the broad object of punishment of an accused found guilty in progressive civilized societies is to impress on the guilty party that commission of crime does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs. The sentence to be appropriate should, therefore, be neither too harsh nor too lenient. In the case in hand the imposition of rigorous imprisonment for one Year upheld by the appellate and the revisional courts may not have been considered by us in the normal course to be too harsh calling for interference under Article 136 of the Constitution. The difficulty now posed is that the appellant is on bail and he has served out only one months sentence. He was originally sentenced by the trial Court on April 17, 1967 for the offence committed as far back as l964. The proceedings against him have lasted for more than 8 Years. He was released on bail by this Court in January, 1970. To send him back to jail now after the lapse of so many years for serving out the remaining period of sentence seems to us on the facts and circumstances of this case to be somewhat harsh. The offence of attempted extortion undoubtedly reflects to some extentdepravity of mind but the attempt did not succeed.
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Cochin State Power, Light Corporation, Limited Vs. Its Workmen | existing wage-rates but should have been lower than the wage-rates prevalent in the Electricity Board in view of the decision at which the tribunal had already arrived. But the tribunal dose not seem to have taken care to deal with the matter on the lines Indicated above. We may add that some of the designations in the appellant-concern are the same as in the case of the Electricity Board; but some of the designations do not tally. In such cases when the tribunal was making comparison with the Electricity Board and decided to grant rates of basic wages which would be lower than the basic wage-rates in the Electricity Board for comparable categories, the tribunal should have taken care to point out the comparable categories from the Electricity Board which would correspond to the categories in existence in the appellant concern and then should have fixed the rates in accordance with its decision to the effect that the basic wages in the appellant-concern should be lower than those in the Electricity Board. It is difficult for us in the circumstances where the categorization is not the same in the appellant-concern as in the Electricity Board to find cut whether the tribunal has given effect to its decision to the effect that the basic wage- rates in the appellant-concern should be lower than those in the Electricity Board. But there are some categories which bear the same name. If we compare the wages fixed in the annexure to the award for such categories with the wages fixed for the same categories in the Electricity Board, we find that in some cases at least the wages fixed in the annexure are higher than the Electricity Board. Take the case of line Inspector. The grade to the Electricity Board is Rs. 50-150 but the grade fixed in the annexure is Rs. 50-175. Take the case of assistant lineman. The grade in the Electricity Board is Rs. 35-60 while the grade fixed in the annexure to the award is Rs. 35-80. Take the case of line-holders. The grade in the Electricity Board is Rs. 35-45 while the grade fixed in the annexure is Rs. 35-50. Take the storekeeper. The grade in the Electricity Board is Rs. 100-250 and the grade fixed in the annexure is the same. Take the case of blacksmith. The grade in the Electricity Board is Rs. 40-100 while in the annexure it is Rs. 40-120. Take the lower division clerks and typists; the grade in the Electricity Board to Rs. 40-120 while the grade in the annexure is also the same. This will be enough to show that though the tribunal said one thing in the body of the award while arriving at its decision, it does not seem to have kept that decision in mind when framing the annexure to the award. In the circumstances we are of opinion that the tribunal should have dealt with the matter more carefully than it seems to have done. Consequently, as the annexure is prima facie inconsistent with the decision of the tribunal, at least in respect of some categories, it must be set aside and the matter sent back to the tribunal to fix basic wage-rates in accordance with its decision, which was to the effect that the wage-rates in the appeal concern have to be lower than the wage-rates in the Electricity Board. We may also add that it will be the duty of the tribunal where the designations do not tally to find out what are the comparably designations in the Electricity Board, for it appears that there is a dispute between the appellant and the respondents as to the correct cor - respondence. Take the case of supervisor, grade I, with engineering qualification. The appellant corresponds the supervisor, grade I, with overseer, grade I, in the Electricity Board. On the other hand the respondents correspond the said post to the junior engineer in the Electricity Board. These are all matters which will have to be gone into by the tribunal before it can properly fix the basic wage-rates in accordance with its decision already mentioned.Re : (ii). - Then we come to the question of temporary workmen. The question referred to the tribunal was about confirmation of the temporary staff. The appellant contended that the reason why some staff was temporary was that they had not passed the required test. The appellant also said that where the temporary staff passed the test, the appellant made them permanent, but where they could not pass the test they had to remain temporary. The tribunal was also of the view that only qualified people could handle electricity and so passing of the test was necessary in order that a workman might be made permanent. The tribunal therefore refused to make the temporary staff permanent but it appealed to the appellant to give one more test to the temporary workmen. It has been stated before us on behalf of the appellant that it has no objection to giving further test to temporary workmen and make them permanent if they pass the test and if there is vacancy. But the appellant contends that trouble is created by the further direction of the tribunal which is in these terms :"Before the test is conducted, the temporary employees must be given the subject-matter of the test so that they can come prepared for the test."4. It is urged on behalf of the appellant that the test is a simple one and not a test of the type required for a degree examination by the university. This direction of the tribunal therefore In substance means that before the test to given, the person tested should be told what questions would be put at the test and that means that, that would be no test at all. Learned counsel for the respondents fairly conceded that this direction of the tribunal almost amounted to directing a university to conduct examination after publishing examination papers sometime before the examination. | 1[ds]We are of opinion that there is force in this contention. As we have already said, we should have expected that having come to the conclusion that the respondents were not entitled to thepaid by the Electricity Board, the tribunal would have given basicwhich would be less than those paid by the Electricity Board. Also we should have expected the tribunal to take care to compare the various kinds of staff in thewith their counterparts in the Electricity Board and then fix basicwhich might have been higher than the existingbut should have been lower than theprevalent in the Electricity Board in view of the decision at which the tribunal had already arrived. But the tribunal dose not seem to have taken care to deal with the matter on the lines Indicated above. We may add that some of the designations in theare the same as in the case of the Electricity Board; but some of the designations do not tally. In such cases when the tribunal was making comparison with the Electricity Board and decided to grant rates of basic wages which would be lower than the basicin the Electricity Board for comparable categories, the tribunal should have taken care to point out the comparable categories from the Electricity Board which would correspond to the categories in existence in the appellant concern and then should have fixed the rates in accordance with its decision to the effect that the basic wages in theshould be lower than those in the Electricity Board. It is difficult for us in the circumstances where the categorization is not the same in theas in the Electricity Board to find cut whether the tribunal has given effect to its decision to the effect that the basic wagerates in theshould be lower than those in the Electricity Board. But there are some categories which bear the same name. If we compare the wages fixed in the annexure to the award for such categories with the wages fixed for the same categories in the Electricity Board, we find that in some cases at least the wages fixed in the annexure are higher than the Electricitywill be enough to show that though the tribunal said one thing in the body of the award while arriving at its decision, it does not seem to have kept that decision in mind when framing the annexure to the award. In the circumstances we are of opinion that the tribunal should have dealt with the matter more carefully than it seems to have done. Consequently, as the annexure is prima facie inconsistent with the decision of the tribunal, at least in respect of some categories, it must be set aside and the matter sent back to the tribunal to fix basicin accordance with its decision, which was to the effect that theappeal concern have to be lower than thein the Electricity Board.We may also add that it will be the duty of the tribunal where the designations do not tally to find out what are the comparably designations in the Electricity Board, for it appears that there is a dispute between the appellant and the respondents as to the correct corThe next point is with respect to the special allowance of four annas which the tribunal has granted to what are called street light scouts. It appears from the statement of claim filed by the union that no claim has been made for any special allowance to street light scouts. We hold that street light scouts are reallyand no more. There was thus no claim for any special allowance forwho happened to do the work of what are called street light scouts. Now there is no reference with respect to payment of special allowance to any category of employees; the reference was only with respect to revision of pay scales.Re : (iv).Lastly we come to the question of the retrospective operation of the award. We have already pointed out that the charter of demands was presented on 14 October 1959 and the reference was made on 15 March 1960. The award of the tribunal was given on 22 July 1961. What the tribunal did was to grant the new scales from January 1960. It also provided how the workmen would be fitted in the new grades from 1 January 1960 and directed that in making such fitment if the existing scale of pay was not a step in the new scale they would be fitted in the next appropriate higher step. It further provided that they would be given one increment on 1 January 1960 and another increment on 1 January 1961, over and above the increments under the settlement and would thereafter be given annual increments on 1 January every year. Lastly it provided that in making fitment and giving one additional increment on 1 January 1960 if an employee does not get a minimum of Rs. 5 on 1 January 1960, he will be at least given Rs. 5 increment with effect from 1 January 1960. Thecontention of the appellant is that these provisions in the award with respect to fitment are very onerous and create large liability on the appellant. It is also contended that under the Electricity (Supply) Act 54 of 1948, which governs the appellant, there are very stringent provisions in Sch. VI bearing on financial principles and their application and it will be very difficult after the accounts for the year have been made up to find money consistently with Sch. VI to pay the arrears which are likely to arise on orders of this kind.We are of opinion that there is force in this contention, though it is not necessary for us to pronounce finally on them, for we have set aside the order fixing the basic wages and in consequence the order as to fitment and Increment will also fall. But the tribunal when it fixes basic wages on remand should take into account the provisions in Sch. VI to the Electricity (Supply) Act when deciding from what date to give effect to the award which it shall be making on remand and will keep in mind the difficulties which may arise in the case of a concern like the appellant, which is governed by Sch. VI to the Electricity (Supply) Act. | 1 | 2,344 | 1,109 | ### Instruction:
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existing wage-rates but should have been lower than the wage-rates prevalent in the Electricity Board in view of the decision at which the tribunal had already arrived. But the tribunal dose not seem to have taken care to deal with the matter on the lines Indicated above. We may add that some of the designations in the appellant-concern are the same as in the case of the Electricity Board; but some of the designations do not tally. In such cases when the tribunal was making comparison with the Electricity Board and decided to grant rates of basic wages which would be lower than the basic wage-rates in the Electricity Board for comparable categories, the tribunal should have taken care to point out the comparable categories from the Electricity Board which would correspond to the categories in existence in the appellant concern and then should have fixed the rates in accordance with its decision to the effect that the basic wages in the appellant-concern should be lower than those in the Electricity Board. It is difficult for us in the circumstances where the categorization is not the same in the appellant-concern as in the Electricity Board to find cut whether the tribunal has given effect to its decision to the effect that the basic wage- rates in the appellant-concern should be lower than those in the Electricity Board. But there are some categories which bear the same name. If we compare the wages fixed in the annexure to the award for such categories with the wages fixed for the same categories in the Electricity Board, we find that in some cases at least the wages fixed in the annexure are higher than the Electricity Board. Take the case of line Inspector. The grade to the Electricity Board is Rs. 50-150 but the grade fixed in the annexure is Rs. 50-175. Take the case of assistant lineman. The grade in the Electricity Board is Rs. 35-60 while the grade fixed in the annexure to the award is Rs. 35-80. Take the case of line-holders. The grade in the Electricity Board is Rs. 35-45 while the grade fixed in the annexure is Rs. 35-50. Take the storekeeper. The grade in the Electricity Board is Rs. 100-250 and the grade fixed in the annexure is the same. Take the case of blacksmith. The grade in the Electricity Board is Rs. 40-100 while in the annexure it is Rs. 40-120. Take the lower division clerks and typists; the grade in the Electricity Board to Rs. 40-120 while the grade in the annexure is also the same. This will be enough to show that though the tribunal said one thing in the body of the award while arriving at its decision, it does not seem to have kept that decision in mind when framing the annexure to the award. In the circumstances we are of opinion that the tribunal should have dealt with the matter more carefully than it seems to have done. Consequently, as the annexure is prima facie inconsistent with the decision of the tribunal, at least in respect of some categories, it must be set aside and the matter sent back to the tribunal to fix basic wage-rates in accordance with its decision, which was to the effect that the wage-rates in the appeal concern have to be lower than the wage-rates in the Electricity Board. We may also add that it will be the duty of the tribunal where the designations do not tally to find out what are the comparably designations in the Electricity Board, for it appears that there is a dispute between the appellant and the respondents as to the correct cor - respondence. Take the case of supervisor, grade I, with engineering qualification. The appellant corresponds the supervisor, grade I, with overseer, grade I, in the Electricity Board. On the other hand the respondents correspond the said post to the junior engineer in the Electricity Board. These are all matters which will have to be gone into by the tribunal before it can properly fix the basic wage-rates in accordance with its decision already mentioned.Re : (ii). - Then we come to the question of temporary workmen. The question referred to the tribunal was about confirmation of the temporary staff. The appellant contended that the reason why some staff was temporary was that they had not passed the required test. The appellant also said that where the temporary staff passed the test, the appellant made them permanent, but where they could not pass the test they had to remain temporary. The tribunal was also of the view that only qualified people could handle electricity and so passing of the test was necessary in order that a workman might be made permanent. The tribunal therefore refused to make the temporary staff permanent but it appealed to the appellant to give one more test to the temporary workmen. It has been stated before us on behalf of the appellant that it has no objection to giving further test to temporary workmen and make them permanent if they pass the test and if there is vacancy. But the appellant contends that trouble is created by the further direction of the tribunal which is in these terms :"Before the test is conducted, the temporary employees must be given the subject-matter of the test so that they can come prepared for the test."4. It is urged on behalf of the appellant that the test is a simple one and not a test of the type required for a degree examination by the university. This direction of the tribunal therefore In substance means that before the test to given, the person tested should be told what questions would be put at the test and that means that, that would be no test at all. Learned counsel for the respondents fairly conceded that this direction of the tribunal almost amounted to directing a university to conduct examination after publishing examination papers sometime before the examination.
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### Explanation:
than those paid by the Electricity Board. Also we should have expected the tribunal to take care to compare the various kinds of staff in thewith their counterparts in the Electricity Board and then fix basicwhich might have been higher than the existingbut should have been lower than theprevalent in the Electricity Board in view of the decision at which the tribunal had already arrived. But the tribunal dose not seem to have taken care to deal with the matter on the lines Indicated above. We may add that some of the designations in theare the same as in the case of the Electricity Board; but some of the designations do not tally. In such cases when the tribunal was making comparison with the Electricity Board and decided to grant rates of basic wages which would be lower than the basicin the Electricity Board for comparable categories, the tribunal should have taken care to point out the comparable categories from the Electricity Board which would correspond to the categories in existence in the appellant concern and then should have fixed the rates in accordance with its decision to the effect that the basic wages in theshould be lower than those in the Electricity Board. It is difficult for us in the circumstances where the categorization is not the same in theas in the Electricity Board to find cut whether the tribunal has given effect to its decision to the effect that the basic wagerates in theshould be lower than those in the Electricity Board. But there are some categories which bear the same name. If we compare the wages fixed in the annexure to the award for such categories with the wages fixed for the same categories in the Electricity Board, we find that in some cases at least the wages fixed in the annexure are higher than the Electricitywill be enough to show that though the tribunal said one thing in the body of the award while arriving at its decision, it does not seem to have kept that decision in mind when framing the annexure to the award. In the circumstances we are of opinion that the tribunal should have dealt with the matter more carefully than it seems to have done. Consequently, as the annexure is prima facie inconsistent with the decision of the tribunal, at least in respect of some categories, it must be set aside and the matter sent back to the tribunal to fix basicin accordance with its decision, which was to the effect that theappeal concern have to be lower than thein the Electricity Board.We may also add that it will be the duty of the tribunal where the designations do not tally to find out what are the comparably designations in the Electricity Board, for it appears that there is a dispute between the appellant and the respondents as to the correct corThe next point is with respect to the special allowance of four annas which the tribunal has granted to what are called street light scouts. It appears from the statement of claim filed by the union that no claim has been made for any special allowance to street light scouts. We hold that street light scouts are reallyand no more. There was thus no claim for any special allowance forwho happened to do the work of what are called street light scouts. Now there is no reference with respect to payment of special allowance to any category of employees; the reference was only with respect to revision of pay scales.Re : (iv).Lastly we come to the question of the retrospective operation of the award. We have already pointed out that the charter of demands was presented on 14 October 1959 and the reference was made on 15 March 1960. The award of the tribunal was given on 22 July 1961. What the tribunal did was to grant the new scales from January 1960. It also provided how the workmen would be fitted in the new grades from 1 January 1960 and directed that in making such fitment if the existing scale of pay was not a step in the new scale they would be fitted in the next appropriate higher step. It further provided that they would be given one increment on 1 January 1960 and another increment on 1 January 1961, over and above the increments under the settlement and would thereafter be given annual increments on 1 January every year. Lastly it provided that in making fitment and giving one additional increment on 1 January 1960 if an employee does not get a minimum of Rs. 5 on 1 January 1960, he will be at least given Rs. 5 increment with effect from 1 January 1960. Thecontention of the appellant is that these provisions in the award with respect to fitment are very onerous and create large liability on the appellant. It is also contended that under the Electricity (Supply) Act 54 of 1948, which governs the appellant, there are very stringent provisions in Sch. VI bearing on financial principles and their application and it will be very difficult after the accounts for the year have been made up to find money consistently with Sch. VI to pay the arrears which are likely to arise on orders of this kind.We are of opinion that there is force in this contention, though it is not necessary for us to pronounce finally on them, for we have set aside the order fixing the basic wages and in consequence the order as to fitment and Increment will also fall. But the tribunal when it fixes basic wages on remand should take into account the provisions in Sch. VI to the Electricity (Supply) Act when deciding from what date to give effect to the award which it shall be making on remand and will keep in mind the difficulties which may arise in the case of a concern like the appellant, which is governed by Sch. VI to the Electricity (Supply) Act.
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Niranjan Vs. State of Maharashtra | parties.14. Thus, the exercise of understanding the purview of term "Hypothecation", however, would finally be governed by stipulations of the promise relating to the hypothecation as agreed to between the parties.15. The property hypothecated can be of two categories, namely,1st category.(i) Movables which can be purchased, stored, used, consumed, treated, converted, stocked, sold and replenished, by virtue of express or implied condition of hypothecation.2nd category.(ii) Other movables, which may be fixed or not fixed to the earth and can be used as an aid in manufacturing, or other processes, have to be maintained, repaired, upgraded, replaced etc., but are not to be freely alienated, due to the character of the goods being such that they are not brought as tradable goods or salable commodity. These movables are ingredients in the activity, and are not brought in the premises as primarily tradable or salable goods and have to remain and continue as a security, such as, plant and machinery or movables of said class and character, by express or implied conditions as regards hypothecation.16. Therefore, on facts of present case, we have to see as to what are the stipulations attached to the hypothecation.17. It is seen from stipulation Nos. 13 and 14 that the company is obliged to keep the plant and machinery to be kpet perfect working order and condition.18. As regards right of removal etc. of machinery/goods, clause 15 of the agreement, provides as follows:"15. The Borrowers shall not remove or cause to be removed or dismantle any of the hypothecated machinery/goods now in use in the Borrowers premises without the consent in writing of the Bank except in case where such removal or dismantling shall in the opinion of the Borrowers be rendered necessary by reason of the same being worn out, injured, damaged or broken and shall also whenever necessary renew or replace all such parts of the hypothecated machinery with others of a like nature and value as now used or henceforth to be used for the purpose of or in connection with the business of the Borrowers when and as the same shall be worn out, injured, damaged or broken and intimate the same to the Bank and give inspection of the hypothecated machinery. "19. The stipulation as to freedom to alienate which is always attached to tradable goods, consumables and stores, is seen to be absent today as regards the plant and machinery-the movables under hypothecation.As is essential and indelible corollary, the borrower company has an inescapable obligation to preserve and conserve within the factory premises entire plant and machinery without any exception.20. The proposition relied on by the learned Advocate for the petitioner, based on reported judgments mentioned above, refer to the tradable stocks, consumables, stores, replenishment etc. Even livestock could fall in this category, as held in respect of buffaloes in 1986(3) Bom.C.R. 207 (supra).21. Admittedly, goods hypothecated, but disposed, for which breach of trust is alleged are machinery, to which the stipulation of free alienability and free physical movement is attached.22. The submissions advanced on behalf of the petitioner are based on ingenious reading of the hypothecation agreement, and moulding the interpretation to suit his own cause. Cases are always to be decided not by closing eyes, but with open eyes on the facts of given case.23. The stipulation on free alienability, which is an essential ingredient of stock in trade, does not, by any connotation, apply to plant and machinery of the borrower company in present set of facts.24. The proposition that the hypothecated properties continue to be under ownership of the borrower, is as clear as day light. However, due to stipulation as to restriction on alienability, the proposition that hypothecated goods being property of borrower, are absolutely alienable, is not an absolute rule of law or of practice in trade, commerce and Banking.25. Hypothecated properties can always be classified in two categories, namely, alienable and non-alienable, and alleged absoluteness of right always carries a clog on inalienability, and right of liquidation by redemption available with the lender, operates as a strong and rigid clog on alienability.26. On the sole ground that stipulation of free alienability was not attached to machinery, the borrower company was under a positive obligation to the contrary i.e. to preserve, conserve and to maintain those in usable and worthy condition.27. Hypothecation of plant and machinery is sui generis in nature and is distinct from generic hypothecation of freely tradable-salable and deliverable goods. The goods covered by generic hypothecation are freely movable, analogous to currency. Goods with restriction on saleability are inambulate due to the promise to that effect. Promise and Trust is the spinal cord of life, including trade and commerce.28. What else would be the breach of Trust, if promise to preserve and conserve the property in ones possession for the benefit and security of other, is betrayed. Had the Bank a grievance that stock-in-trade, or other tradable goods and consumables etc. were sold, such grievance could have been rebuffed as a cantankerous plea. Goods, which did not carry a qualification of saleability, attract the obligation of trust, and breach of such obligation would, prima facie, become a breach of Trust.29. Therefore none amongst the cases relied upon by the petitioner would apply to the facts of the present case.30. The result is that, the entire foundation of the petition is fictional and in the nature of hide and seek, and therefore, petition does not deserve any further indulgence31. The observations made hereinbefore, were necessary to have the reasons leading to conclusion duly spelt out and made vivid. The FIR is still at the stage of investigation. Therefore, the Investigating Officer shall be free to proceed on what emerges upon investigation, since whatever we have opined and expressed is what appears to us prima facie. The Investigating Officer in the process of investigation, and the trial court in case of a chargesheet, shall not be influenced by observations made hereinbefore and would be governed by the facts and evidence as would surface. | 0[ds]23. The stipulation on free alienability, which is an essential ingredient of stock in trade, does not, by any connotation, apply to plant and machinery of the borrower company in present set of facts.24. The proposition that the hypothecated properties continue to be under ownership of the borrower, is as clear as day light. However, due to stipulation as to restriction on alienability, the proposition that hypothecated goods being property of borrower, are absolutely alienable, is not an absolute rule of law or of practice in trade, commerce and Banking.25. Hypothecated properties can always be classified in two categories, namely, alienable andand alleged absoluteness of right always carries a clog on inalienability, and right of liquidation by redemption available with the lender, operates as a strong and rigid clog on alienability.26. On the sole ground that stipulation of free alienability was not attached to machinery, the borrower company was under a positive obligation to the contrary i.e. to preserve, conserve and to maintain those in usable and worthy condition.27. Hypothecation of plant and machinery is sui generis in nature and is distinct from generic hypothecation of freelyand deliverable goods. The goods covered by generic hypothecation are freely movable, analogous to currency. Goods with restriction on saleability are inambulate due to the promise to that effect. Promise and Trust is the spinal cord of life, including trade and commerce.28. What else would be the breach of Trust, if promise to preserve and conserve the property in ones possession for the benefit and security of other, is betrayed. Had the Bank a grievance thator other tradable goods and consumables etc. were sold, such grievance could have been rebuffed as a cantankerous plea. Goods, which did not carry a qualification of saleability, attract the obligation of trust, and breach of such obligation would, prima facie, become a breach of Trust.29. Therefore none amongst the cases relied upon by the petitioner would apply to the facts of the present case.30. The result is that, the entire foundation of the petition is fictional and in the nature of hide and seek, and therefore, petition does not deserve any further indulgence31. The observations made hereinbefore, were necessary to have the reasons leading to conclusion duly spelt out and made vivid. The FIR is still at the stage of investigation. Therefore, the Investigating Officer shall be free to proceed on what emerges upon investigation, since whatever we have opined and expressed is what appears to us prima facie. The Investigating Officer in the process of investigation, and the trial court in case of a chargesheet, shall not be influenced by observations made hereinbefore and would be governed by the facts and evidence as would surface. | 0 | 2,493 | 507 | ### Instruction:
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parties.14. Thus, the exercise of understanding the purview of term "Hypothecation", however, would finally be governed by stipulations of the promise relating to the hypothecation as agreed to between the parties.15. The property hypothecated can be of two categories, namely,1st category.(i) Movables which can be purchased, stored, used, consumed, treated, converted, stocked, sold and replenished, by virtue of express or implied condition of hypothecation.2nd category.(ii) Other movables, which may be fixed or not fixed to the earth and can be used as an aid in manufacturing, or other processes, have to be maintained, repaired, upgraded, replaced etc., but are not to be freely alienated, due to the character of the goods being such that they are not brought as tradable goods or salable commodity. These movables are ingredients in the activity, and are not brought in the premises as primarily tradable or salable goods and have to remain and continue as a security, such as, plant and machinery or movables of said class and character, by express or implied conditions as regards hypothecation.16. Therefore, on facts of present case, we have to see as to what are the stipulations attached to the hypothecation.17. It is seen from stipulation Nos. 13 and 14 that the company is obliged to keep the plant and machinery to be kpet perfect working order and condition.18. As regards right of removal etc. of machinery/goods, clause 15 of the agreement, provides as follows:"15. The Borrowers shall not remove or cause to be removed or dismantle any of the hypothecated machinery/goods now in use in the Borrowers premises without the consent in writing of the Bank except in case where such removal or dismantling shall in the opinion of the Borrowers be rendered necessary by reason of the same being worn out, injured, damaged or broken and shall also whenever necessary renew or replace all such parts of the hypothecated machinery with others of a like nature and value as now used or henceforth to be used for the purpose of or in connection with the business of the Borrowers when and as the same shall be worn out, injured, damaged or broken and intimate the same to the Bank and give inspection of the hypothecated machinery. "19. The stipulation as to freedom to alienate which is always attached to tradable goods, consumables and stores, is seen to be absent today as regards the plant and machinery-the movables under hypothecation.As is essential and indelible corollary, the borrower company has an inescapable obligation to preserve and conserve within the factory premises entire plant and machinery without any exception.20. The proposition relied on by the learned Advocate for the petitioner, based on reported judgments mentioned above, refer to the tradable stocks, consumables, stores, replenishment etc. Even livestock could fall in this category, as held in respect of buffaloes in 1986(3) Bom.C.R. 207 (supra).21. Admittedly, goods hypothecated, but disposed, for which breach of trust is alleged are machinery, to which the stipulation of free alienability and free physical movement is attached.22. The submissions advanced on behalf of the petitioner are based on ingenious reading of the hypothecation agreement, and moulding the interpretation to suit his own cause. Cases are always to be decided not by closing eyes, but with open eyes on the facts of given case.23. The stipulation on free alienability, which is an essential ingredient of stock in trade, does not, by any connotation, apply to plant and machinery of the borrower company in present set of facts.24. The proposition that the hypothecated properties continue to be under ownership of the borrower, is as clear as day light. However, due to stipulation as to restriction on alienability, the proposition that hypothecated goods being property of borrower, are absolutely alienable, is not an absolute rule of law or of practice in trade, commerce and Banking.25. Hypothecated properties can always be classified in two categories, namely, alienable and non-alienable, and alleged absoluteness of right always carries a clog on inalienability, and right of liquidation by redemption available with the lender, operates as a strong and rigid clog on alienability.26. On the sole ground that stipulation of free alienability was not attached to machinery, the borrower company was under a positive obligation to the contrary i.e. to preserve, conserve and to maintain those in usable and worthy condition.27. Hypothecation of plant and machinery is sui generis in nature and is distinct from generic hypothecation of freely tradable-salable and deliverable goods. The goods covered by generic hypothecation are freely movable, analogous to currency. Goods with restriction on saleability are inambulate due to the promise to that effect. Promise and Trust is the spinal cord of life, including trade and commerce.28. What else would be the breach of Trust, if promise to preserve and conserve the property in ones possession for the benefit and security of other, is betrayed. Had the Bank a grievance that stock-in-trade, or other tradable goods and consumables etc. were sold, such grievance could have been rebuffed as a cantankerous plea. Goods, which did not carry a qualification of saleability, attract the obligation of trust, and breach of such obligation would, prima facie, become a breach of Trust.29. Therefore none amongst the cases relied upon by the petitioner would apply to the facts of the present case.30. The result is that, the entire foundation of the petition is fictional and in the nature of hide and seek, and therefore, petition does not deserve any further indulgence31. The observations made hereinbefore, were necessary to have the reasons leading to conclusion duly spelt out and made vivid. The FIR is still at the stage of investigation. Therefore, the Investigating Officer shall be free to proceed on what emerges upon investigation, since whatever we have opined and expressed is what appears to us prima facie. The Investigating Officer in the process of investigation, and the trial court in case of a chargesheet, shall not be influenced by observations made hereinbefore and would be governed by the facts and evidence as would surface.
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0
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23. The stipulation on free alienability, which is an essential ingredient of stock in trade, does not, by any connotation, apply to plant and machinery of the borrower company in present set of facts.24. The proposition that the hypothecated properties continue to be under ownership of the borrower, is as clear as day light. However, due to stipulation as to restriction on alienability, the proposition that hypothecated goods being property of borrower, are absolutely alienable, is not an absolute rule of law or of practice in trade, commerce and Banking.25. Hypothecated properties can always be classified in two categories, namely, alienable andand alleged absoluteness of right always carries a clog on inalienability, and right of liquidation by redemption available with the lender, operates as a strong and rigid clog on alienability.26. On the sole ground that stipulation of free alienability was not attached to machinery, the borrower company was under a positive obligation to the contrary i.e. to preserve, conserve and to maintain those in usable and worthy condition.27. Hypothecation of plant and machinery is sui generis in nature and is distinct from generic hypothecation of freelyand deliverable goods. The goods covered by generic hypothecation are freely movable, analogous to currency. Goods with restriction on saleability are inambulate due to the promise to that effect. Promise and Trust is the spinal cord of life, including trade and commerce.28. What else would be the breach of Trust, if promise to preserve and conserve the property in ones possession for the benefit and security of other, is betrayed. Had the Bank a grievance thator other tradable goods and consumables etc. were sold, such grievance could have been rebuffed as a cantankerous plea. Goods, which did not carry a qualification of saleability, attract the obligation of trust, and breach of such obligation would, prima facie, become a breach of Trust.29. Therefore none amongst the cases relied upon by the petitioner would apply to the facts of the present case.30. The result is that, the entire foundation of the petition is fictional and in the nature of hide and seek, and therefore, petition does not deserve any further indulgence31. The observations made hereinbefore, were necessary to have the reasons leading to conclusion duly spelt out and made vivid. The FIR is still at the stage of investigation. Therefore, the Investigating Officer shall be free to proceed on what emerges upon investigation, since whatever we have opined and expressed is what appears to us prima facie. The Investigating Officer in the process of investigation, and the trial court in case of a chargesheet, shall not be influenced by observations made hereinbefore and would be governed by the facts and evidence as would surface.
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Habibullah Khan Vs. The State of West Bengal | the same day that the order was passed, the petitioner was arrested in pursuance of detention order and the grounds were served on him. The detention was reported to the State Government on May 9, it was approved by the State Government on May 14 and on the same day a report in behalf of the petitioners detention was submitted to the Central Government. The petitioners representation was received by the State Government on May 29, it was considered on June 1 and on the very next day the matter was placed before the Advisory Board. The Board gave its decision on June 28 and the order of detention was confirmed by the Government on July 30. The communication in regard to the confirmation of the detention order was received by the petitioner on August. 14.2. The order of detention was passed under Section 3 (1) (a) (iii) of the Maintenance of Internal Security Act, 1971 on the ground that the petitioner was acting in a manner prejudicial to the maintenance of supplies and services essential to the community. The order is based on the allegation that on April, 22, 1973 the petitioner, along with his associates, had cut the over-head return conductor wire in between two railway stations on the Sealdah-Diamond Harbour Section of the Eastern Railway and had committed theft of the wire causing complete dislocation of train services in the particular section.3. Learned counsel appearing on behalf of the petitioner contends that the detaining authority has displayed utter callousness in regard to the petitioners detention and has approached the duties imposed on him by law in a casual manner. This argument is founded on the following facts:(1) Though the order of detention is based on one ground only, the letter of the District Magistrate communicating to the petitioner the particulars contain a statement that the petitioner was being detained on the "grounds that he was acting in a manner prejudicial to the maintenance of supplies and service essential to the community, as evidenced by the particulars .... taken separately and collectively;(2) though the order of detention is passed by the District Magistrate, the affidavit in answer to the petition has been filed by an officer of the rank only of a Deputy Secretary, Home Department, Government of West Bengal;(3) the order of confirmation does not mention the period for which the petitioner was to be kept under detention;(4) the order of detention is based on a solitary ground comprising a stray incident, and(5) the order of confirmation passed by the State Government was not communicated to the petitioner within a reasonable time.4. It is not proper that the particulars furnished to the petitioner should have been accompanied by a mechanical recital that he was being detained on the "grounds mentioned therein, even though the order is founded on a single ground. The detaining authority must apply its mind to individual cases and ought not to adopt a mechanical approach to matters involving personal freedom. But the mistake is not of so serious a nature as would vitiate the detention. In regard to the statement that the particulars furnished to the petitioner were considered "separately and collectively we see no error because the particulars mention more than one fact, though they relate to a single incident. The facts mentioned in the particulars are that the petitioner cut the over-head wire, committed theft thereof that the wire was of the value of Rs. 1500/- and that the theft caused a total dislocation of train services in the particular section.5. As regards the second ground that the detaining authority should himself make the affidavit in reply, the affidavit filed by the Deputy Secretary offers a satisfactory explanation as to why the District Magistrate could not himself make the affidavit. The District Magistrate was apparently occupied with problems of law and order as also with the problem of procurement of rice in the particular district.6. In regard to the third ground, we rarely come across an order of confirmation passed by the Government in which the period of detention is not mentioned. But Section 13 of the Act as amended by Section 6 (d) of the Defence of India Act, 1971 provides that the maximum period for which any person may be detained shall be twelve months from the date of detention or until the expiry of Defence of India Act, 1971, whichever is later. This statutory provision places an outside limit on the period of detention and the Proviso to Section 13 leaves it open to the appropriate Government to revoke or modify the order of detention at any earlier time. It is therefore not possible to say that the failure to mention the period of detention in the order of confirmation constituted an illegality vitiating the order of detention.7. The fourth ground raises a question which is not within the jurisdiction of this court because sufficiency of the evidence before the detaining authority is not a matter for the Courts to decide. The particulars furnished to the petitioner show that the facts within the knowledge of the detaining authority bear a rational connection with maintenance of supplies and service essential to the community. The order cannot therefore be said to have been passed on extraneous grounds.8.On the last point it is not possible to hold that there was in the circumstances of the case, an unfair delay in communicating to the petitioner the confirmation of the detention order by the State Government. The order was confirmed on July 30, 1973 and the affidavit in reply to the petition shows that on the very next day the Additional Superintendent of Police, D.I.B., 24-Parganas, was asked by a written memorandum to serve the confirmation on the petitioner. In Deb Sadhan Roy v. State of West Bengal, AIR 1972 SC 1924 this court observed that though the confirmation should be communicated to the detenu within a reasonable time, what is a reasonable time must necessarily depend upon the circumstances of each case. | 0[ds]4. It is not proper that the particulars furnished to the petitioner should have been accompanied by a mechanical recital that he was being detained on the "grounds mentioned therein, even though the order is founded on a single ground. The detaining authority must apply its mind to individual cases and ought not to adopt a mechanical approach to matters involving personal freedom. But the mistake is not of so serious a nature as would vitiate the detention. In regard to the statement that the particulars furnished to the petitioner were considered "separately and collectively we see no error because the particulars mention more than one fact, though they relate to a single incident. The facts mentioned in the particulars are that the petitioner cut thewire, committed theft thereof that the wire was of the value of Rs. 1500/and that the theft caused a total dislocation of train services in the particular section.5. As regards the second ground that the detaining authority should himself make the affidavit in reply, the affidavit filed by the Deputy Secretary offers a satisfactory explanation as to why the District Magistrate could not himself make the affidavit. The District Magistrate was apparently occupied with problems of law and order as also with the problem of procurement of rice in the particular district.6. In regard to the third ground, we rarely come across an order of confirmation passed by the Government in which the period of detention is not mentioned. But Section 13 of the Act as amended by Section 6 (d) of the Defence of India Act, 1971 provides that the maximum period for which any person may be detained shall be twelve months from the date of detention or until the expiry of Defence of India Act, 1971, whichever is later. This statutory provision places an outside limit on the period of detention and the Proviso to Section 13 leaves it open to the appropriate Government to revoke or modify the order of detention at any earlier time. It is therefore not possible to say that the failure to mention the period of detention in the order of confirmation constituted an illegality vitiating the order of detention.7. The fourth ground raises a question which is not within the jurisdiction of this court because sufficiency of the evidence before the detaining authority is not a matter for the Courts to decide. The particulars furnished to the petitioner show that the facts within the knowledge of the detaining authority bear a rational connection with maintenance of supplies and service essential to the community. The order cannot therefore be said to have been passed on extraneous grounds.8.On the last point it is not possible to hold that there was in the circumstances of the case, an unfair delay in communicating to the petitioner the confirmation of the detention order by the State Government. The order was confirmed on July 30, 1973 and the affidavit in reply to the petition shows that on the very next day the Additional Superintendent of Police, D.I.B.,was asked by a written memorandum to serve the confirmation on the petitioner. In Deb Sadhan Roy v. State of West Bengal, AIR 1972 SC 1924 this court observed that though the confirmation should be communicated to the detenu within a reasonable time, what is a reasonable time must necessarily depend upon the circumstances of each case. | 0 | 1,124 | 603 | ### 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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the same day that the order was passed, the petitioner was arrested in pursuance of detention order and the grounds were served on him. The detention was reported to the State Government on May 9, it was approved by the State Government on May 14 and on the same day a report in behalf of the petitioners detention was submitted to the Central Government. The petitioners representation was received by the State Government on May 29, it was considered on June 1 and on the very next day the matter was placed before the Advisory Board. The Board gave its decision on June 28 and the order of detention was confirmed by the Government on July 30. The communication in regard to the confirmation of the detention order was received by the petitioner on August. 14.2. The order of detention was passed under Section 3 (1) (a) (iii) of the Maintenance of Internal Security Act, 1971 on the ground that the petitioner was acting in a manner prejudicial to the maintenance of supplies and services essential to the community. The order is based on the allegation that on April, 22, 1973 the petitioner, along with his associates, had cut the over-head return conductor wire in between two railway stations on the Sealdah-Diamond Harbour Section of the Eastern Railway and had committed theft of the wire causing complete dislocation of train services in the particular section.3. Learned counsel appearing on behalf of the petitioner contends that the detaining authority has displayed utter callousness in regard to the petitioners detention and has approached the duties imposed on him by law in a casual manner. This argument is founded on the following facts:(1) Though the order of detention is based on one ground only, the letter of the District Magistrate communicating to the petitioner the particulars contain a statement that the petitioner was being detained on the "grounds that he was acting in a manner prejudicial to the maintenance of supplies and service essential to the community, as evidenced by the particulars .... taken separately and collectively;(2) though the order of detention is passed by the District Magistrate, the affidavit in answer to the petition has been filed by an officer of the rank only of a Deputy Secretary, Home Department, Government of West Bengal;(3) the order of confirmation does not mention the period for which the petitioner was to be kept under detention;(4) the order of detention is based on a solitary ground comprising a stray incident, and(5) the order of confirmation passed by the State Government was not communicated to the petitioner within a reasonable time.4. It is not proper that the particulars furnished to the petitioner should have been accompanied by a mechanical recital that he was being detained on the "grounds mentioned therein, even though the order is founded on a single ground. The detaining authority must apply its mind to individual cases and ought not to adopt a mechanical approach to matters involving personal freedom. But the mistake is not of so serious a nature as would vitiate the detention. In regard to the statement that the particulars furnished to the petitioner were considered "separately and collectively we see no error because the particulars mention more than one fact, though they relate to a single incident. The facts mentioned in the particulars are that the petitioner cut the over-head wire, committed theft thereof that the wire was of the value of Rs. 1500/- and that the theft caused a total dislocation of train services in the particular section.5. As regards the second ground that the detaining authority should himself make the affidavit in reply, the affidavit filed by the Deputy Secretary offers a satisfactory explanation as to why the District Magistrate could not himself make the affidavit. The District Magistrate was apparently occupied with problems of law and order as also with the problem of procurement of rice in the particular district.6. In regard to the third ground, we rarely come across an order of confirmation passed by the Government in which the period of detention is not mentioned. But Section 13 of the Act as amended by Section 6 (d) of the Defence of India Act, 1971 provides that the maximum period for which any person may be detained shall be twelve months from the date of detention or until the expiry of Defence of India Act, 1971, whichever is later. This statutory provision places an outside limit on the period of detention and the Proviso to Section 13 leaves it open to the appropriate Government to revoke or modify the order of detention at any earlier time. It is therefore not possible to say that the failure to mention the period of detention in the order of confirmation constituted an illegality vitiating the order of detention.7. The fourth ground raises a question which is not within the jurisdiction of this court because sufficiency of the evidence before the detaining authority is not a matter for the Courts to decide. The particulars furnished to the petitioner show that the facts within the knowledge of the detaining authority bear a rational connection with maintenance of supplies and service essential to the community. The order cannot therefore be said to have been passed on extraneous grounds.8.On the last point it is not possible to hold that there was in the circumstances of the case, an unfair delay in communicating to the petitioner the confirmation of the detention order by the State Government. The order was confirmed on July 30, 1973 and the affidavit in reply to the petition shows that on the very next day the Additional Superintendent of Police, D.I.B., 24-Parganas, was asked by a written memorandum to serve the confirmation on the petitioner. In Deb Sadhan Roy v. State of West Bengal, AIR 1972 SC 1924 this court observed that though the confirmation should be communicated to the detenu within a reasonable time, what is a reasonable time must necessarily depend upon the circumstances of each case.
### Response:
0
### Explanation:
4. It is not proper that the particulars furnished to the petitioner should have been accompanied by a mechanical recital that he was being detained on the "grounds mentioned therein, even though the order is founded on a single ground. The detaining authority must apply its mind to individual cases and ought not to adopt a mechanical approach to matters involving personal freedom. But the mistake is not of so serious a nature as would vitiate the detention. In regard to the statement that the particulars furnished to the petitioner were considered "separately and collectively we see no error because the particulars mention more than one fact, though they relate to a single incident. The facts mentioned in the particulars are that the petitioner cut thewire, committed theft thereof that the wire was of the value of Rs. 1500/and that the theft caused a total dislocation of train services in the particular section.5. As regards the second ground that the detaining authority should himself make the affidavit in reply, the affidavit filed by the Deputy Secretary offers a satisfactory explanation as to why the District Magistrate could not himself make the affidavit. The District Magistrate was apparently occupied with problems of law and order as also with the problem of procurement of rice in the particular district.6. In regard to the third ground, we rarely come across an order of confirmation passed by the Government in which the period of detention is not mentioned. But Section 13 of the Act as amended by Section 6 (d) of the Defence of India Act, 1971 provides that the maximum period for which any person may be detained shall be twelve months from the date of detention or until the expiry of Defence of India Act, 1971, whichever is later. This statutory provision places an outside limit on the period of detention and the Proviso to Section 13 leaves it open to the appropriate Government to revoke or modify the order of detention at any earlier time. It is therefore not possible to say that the failure to mention the period of detention in the order of confirmation constituted an illegality vitiating the order of detention.7. The fourth ground raises a question which is not within the jurisdiction of this court because sufficiency of the evidence before the detaining authority is not a matter for the Courts to decide. The particulars furnished to the petitioner show that the facts within the knowledge of the detaining authority bear a rational connection with maintenance of supplies and service essential to the community. The order cannot therefore be said to have been passed on extraneous grounds.8.On the last point it is not possible to hold that there was in the circumstances of the case, an unfair delay in communicating to the petitioner the confirmation of the detention order by the State Government. The order was confirmed on July 30, 1973 and the affidavit in reply to the petition shows that on the very next day the Additional Superintendent of Police, D.I.B.,was asked by a written memorandum to serve the confirmation on the petitioner. In Deb Sadhan Roy v. State of West Bengal, AIR 1972 SC 1924 this court observed that though the confirmation should be communicated to the detenu within a reasonable time, what is a reasonable time must necessarily depend upon the circumstances of each case.
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M/S Cipla Ltd Vs. Commnr. Of Central Excise, Bangalore | Court challenging the aforesaid order in original. The High Court, by its order dated 27th July 1988, quashed the said order and directed the Assistant Collector to decide the issue afresh. In another round of litigation, the product in question was held to be excisable and on appeal before a Division Bench of the High Court, the matter was remanded back to the Assistant Collector for passing a detailed order on the question whether the goods were excisable or not after affording due opportunity to the parties to lead their evidence. Pursuant to the said order, the appellant submitted detailed letters dated 16.3.1992 and 3.4.1992. The Assistant Collector passed a fresh order dated 21.4.1992/23.4.1992 wherein he examined the issue in detail and after referring to the various decisions of this Court on the issue of marketability held that the enquiries made by the Revenue to ascertain the marketability of BMS had not yielded any tangible results and that the Assistant Drug Controller of India at Custom House, Bombay, had also stated that there had been no import or export of BMS at the port of Bombay. The Assistant Collector also referred to the evidence produced by the appellant by way of affidavits and letters from bulk drug dealers to hold that BMS manufactured was not marketed. It was also held that the Department had not been able to furnish any documents regarding the marketability of the goods in question. Following the decision of this Court in the case of Bhor Industries Ltd. v. C.C.E. 1989(40) ELT 280 (SC) = 1989(1) SCC 602 the Assistant Collector held that BMS was not excisable product under the Tariff Act. The aforesaid order of the Assistant Collector was reviewed by the Collector of Central Excise, Bangalore, under Section 35E(2) of the Act and in pursuance to the said review, an appeal was filed before the Commissioner of Customs & Central Excise (Appeals) against the order in original. The Commissioner (Appeals), by order dated 1.3.1999, held that BMS was marketable and, therefore, liable to central excise duty. The only reason given by the appellate authority for holding the product in question to be marketable was that BMS, being drug intermediate was being transported by the appellant from its factory at Bangalore to its Patalganga manufacturing facility after being packed in drums. It was held that as the product was packed and had a shelf life, it was capable of being marketed. The appellant, dissatisfied by the aforesaid order, filed an appeal before the Tribunal. The case came up for hearing before a two-member Bench of the Tribunal. There was a difference of opinion between the two members. Member (Technical) upheld the view taken by the Commissioner (Appeals) and held that the product in question was marketable whereas the Member (Judicial) took a contrary view and held that the goods were not marketable. It was also held by the Member (Judicial) that the Revenue had failed to adduce any evidence to show that the product in question was marketed or marketable. In view of the difference of opinion, the matter was referred to a third member to resolve the issue. The third member agreed with the view taken by the Member (Technical). As a consequence of the majority view, the appeal filed by the appellant was dismissed. On a question put to Mr. Radhakrishnan, learned senior counsel appearing for the Revenue, it was fairly stated by him that no evidence was adduced by the Revenue to show that the product was marketable or was capable of being marketed. He simply relied upon Chemical Weekly Drug Directory wherein BMS was shown as an intermediate product. This Court in a number of decisions such as, Union of India v. Delhi Cloth & Chemicals Mills Co. Ltd. AIR 1963 SC 791 ; South Bihar Sugar Mills v. Union of India AIR 1968 SC 928 = 1968 (3) SCR 21 ; Bhor Industries v. Collector 1989(40) ELT 280 (SC) = 1989(1) SCC 602; Hindustan Polymers v. Collector 1989(43) ELT 165 (SC); Collector of Central Excise v. Ambalal Sarabhai JT 1989(3) SC 341 = 1989 (43) ELT 214 ; Union Carbide v. Union of India 1986(24) ELT 169; and A.P. Electricity Board v. Collector of Central Excise 1994(70) ELT 3 SC = JT 1994(1) SC 545 has held that marketability is an essential ingredient to hold that an article is dutiable or exigible to duty of excise. It is well established principle of law that the burden is on the Revenue to prove that the goods are marketable or are exigible. Simply because a product is mentioned in the Chemical Weekly Drug Directory as intermediate product does not mean that the product is marketable. The Judicial Member was, therefore, right in observing that BMS being used in the manufacture of final product, i.e., Salbutamol Sulphate was neither marketed nor marketable and was only an intermediate product. Since marketability is an essential ingredient to hold that a product is dutiable or exigible, it was for the Revenue to prove that the product was marketable or was capable of being marketed. Manufacturing activity, by itself, does not prove the marketability. The product produced must be a distinct commodity known in the common parlance to the commercial community for the purpose of buying and selling. Since there is no evidence of either buying or selling in the present case, it cannot be held that the product in question was marketable or was capable of being marketed. Mere transfer of BMS by the appellant from its factory at Bangalore to its own unit at Patalganga for manufacture of final product does not show that the product was either marketed or was marketable. Since the Revenue has failed to lead any evidence to show that the product in question was marketable or was capable of being marketed and that the product in question was a distinct product for being sold in the market, it has to be held that the product in question was not marketable. | 1[ds]This Court in a number of decisions such as, Union of India v. Delhi Cloth & Chemicals Mills Co. Ltd. AIR 1963 SC 791 ; South Bihar Sugar Mills v. Union of India AIR 1968 SC 928 = 1968 (3) SCR 21 ; Bhor Industries v. Collector 1989(40) ELT 280 (SC) = 1989(1) SCC 602; Hindustan Polymers v. Collector 1989(43) ELT 165 (SC); Collector of Central Excise v. Ambalal Sarabhai JT 1989(3) SC 341 = 1989 (43) ELT 214 ; Union Carbide v. Union of India 1986(24) ELT 169; and A.P. Electricity Board v. Collector of Central Excise 1994(70) ELT 3 SC = JT 1994(1) SC 545 has held that marketability is an essential ingredient to hold that an article is dutiable or exigible to duty of excise. It is well established principle of law that the burden is on the Revenue to prove that the goods are marketable or are exigible. Simply because a product is mentioned in the Chemical Weekly Drug Directory as intermediate product does not mean that the product is marketable. The Judicial Member was, therefore, right in observing that BMS being used in the manufacture of final product, i.e., Salbutamol Sulphate was neither marketed nor marketable and was only an intermediatemarketability is an essential ingredient to hold that a product is dutiable or exigible, it was for the Revenue to prove that the product was marketable or was capable of being marketed. Manufacturing activity, by itself, does not prove the marketability. The product produced must be a distinct commodity known in the common parlance to the commercial community for the purpose of buying and selling. Since there is no evidence of either buying or selling in the present case, it cannot be held that the product in question was marketable or was capable of being marketed. Mere transfer of BMS by the appellant from its factory at Bangalore to its own unit at Patalganga for manufacture of final product does not show that the product was either marketed or was marketable. Since the Revenue has failed to lead any evidence to show that the product in question was marketable or was capable of being marketed and that the product in question was a distinct product for being sold in the market, it has to be held that the product in question was not marketable. | 1 | 1,479 | 446 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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Court challenging the aforesaid order in original. The High Court, by its order dated 27th July 1988, quashed the said order and directed the Assistant Collector to decide the issue afresh. In another round of litigation, the product in question was held to be excisable and on appeal before a Division Bench of the High Court, the matter was remanded back to the Assistant Collector for passing a detailed order on the question whether the goods were excisable or not after affording due opportunity to the parties to lead their evidence. Pursuant to the said order, the appellant submitted detailed letters dated 16.3.1992 and 3.4.1992. The Assistant Collector passed a fresh order dated 21.4.1992/23.4.1992 wherein he examined the issue in detail and after referring to the various decisions of this Court on the issue of marketability held that the enquiries made by the Revenue to ascertain the marketability of BMS had not yielded any tangible results and that the Assistant Drug Controller of India at Custom House, Bombay, had also stated that there had been no import or export of BMS at the port of Bombay. The Assistant Collector also referred to the evidence produced by the appellant by way of affidavits and letters from bulk drug dealers to hold that BMS manufactured was not marketed. It was also held that the Department had not been able to furnish any documents regarding the marketability of the goods in question. Following the decision of this Court in the case of Bhor Industries Ltd. v. C.C.E. 1989(40) ELT 280 (SC) = 1989(1) SCC 602 the Assistant Collector held that BMS was not excisable product under the Tariff Act. The aforesaid order of the Assistant Collector was reviewed by the Collector of Central Excise, Bangalore, under Section 35E(2) of the Act and in pursuance to the said review, an appeal was filed before the Commissioner of Customs & Central Excise (Appeals) against the order in original. The Commissioner (Appeals), by order dated 1.3.1999, held that BMS was marketable and, therefore, liable to central excise duty. The only reason given by the appellate authority for holding the product in question to be marketable was that BMS, being drug intermediate was being transported by the appellant from its factory at Bangalore to its Patalganga manufacturing facility after being packed in drums. It was held that as the product was packed and had a shelf life, it was capable of being marketed. The appellant, dissatisfied by the aforesaid order, filed an appeal before the Tribunal. The case came up for hearing before a two-member Bench of the Tribunal. There was a difference of opinion between the two members. Member (Technical) upheld the view taken by the Commissioner (Appeals) and held that the product in question was marketable whereas the Member (Judicial) took a contrary view and held that the goods were not marketable. It was also held by the Member (Judicial) that the Revenue had failed to adduce any evidence to show that the product in question was marketed or marketable. In view of the difference of opinion, the matter was referred to a third member to resolve the issue. The third member agreed with the view taken by the Member (Technical). As a consequence of the majority view, the appeal filed by the appellant was dismissed. On a question put to Mr. Radhakrishnan, learned senior counsel appearing for the Revenue, it was fairly stated by him that no evidence was adduced by the Revenue to show that the product was marketable or was capable of being marketed. He simply relied upon Chemical Weekly Drug Directory wherein BMS was shown as an intermediate product. This Court in a number of decisions such as, Union of India v. Delhi Cloth & Chemicals Mills Co. Ltd. AIR 1963 SC 791 ; South Bihar Sugar Mills v. Union of India AIR 1968 SC 928 = 1968 (3) SCR 21 ; Bhor Industries v. Collector 1989(40) ELT 280 (SC) = 1989(1) SCC 602; Hindustan Polymers v. Collector 1989(43) ELT 165 (SC); Collector of Central Excise v. Ambalal Sarabhai JT 1989(3) SC 341 = 1989 (43) ELT 214 ; Union Carbide v. Union of India 1986(24) ELT 169; and A.P. Electricity Board v. Collector of Central Excise 1994(70) ELT 3 SC = JT 1994(1) SC 545 has held that marketability is an essential ingredient to hold that an article is dutiable or exigible to duty of excise. It is well established principle of law that the burden is on the Revenue to prove that the goods are marketable or are exigible. Simply because a product is mentioned in the Chemical Weekly Drug Directory as intermediate product does not mean that the product is marketable. The Judicial Member was, therefore, right in observing that BMS being used in the manufacture of final product, i.e., Salbutamol Sulphate was neither marketed nor marketable and was only an intermediate product. Since marketability is an essential ingredient to hold that a product is dutiable or exigible, it was for the Revenue to prove that the product was marketable or was capable of being marketed. Manufacturing activity, by itself, does not prove the marketability. The product produced must be a distinct commodity known in the common parlance to the commercial community for the purpose of buying and selling. Since there is no evidence of either buying or selling in the present case, it cannot be held that the product in question was marketable or was capable of being marketed. Mere transfer of BMS by the appellant from its factory at Bangalore to its own unit at Patalganga for manufacture of final product does not show that the product was either marketed or was marketable. Since the Revenue has failed to lead any evidence to show that the product in question was marketable or was capable of being marketed and that the product in question was a distinct product for being sold in the market, it has to be held that the product in question was not marketable.
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This Court in a number of decisions such as, Union of India v. Delhi Cloth & Chemicals Mills Co. Ltd. AIR 1963 SC 791 ; South Bihar Sugar Mills v. Union of India AIR 1968 SC 928 = 1968 (3) SCR 21 ; Bhor Industries v. Collector 1989(40) ELT 280 (SC) = 1989(1) SCC 602; Hindustan Polymers v. Collector 1989(43) ELT 165 (SC); Collector of Central Excise v. Ambalal Sarabhai JT 1989(3) SC 341 = 1989 (43) ELT 214 ; Union Carbide v. Union of India 1986(24) ELT 169; and A.P. Electricity Board v. Collector of Central Excise 1994(70) ELT 3 SC = JT 1994(1) SC 545 has held that marketability is an essential ingredient to hold that an article is dutiable or exigible to duty of excise. It is well established principle of law that the burden is on the Revenue to prove that the goods are marketable or are exigible. Simply because a product is mentioned in the Chemical Weekly Drug Directory as intermediate product does not mean that the product is marketable. The Judicial Member was, therefore, right in observing that BMS being used in the manufacture of final product, i.e., Salbutamol Sulphate was neither marketed nor marketable and was only an intermediatemarketability is an essential ingredient to hold that a product is dutiable or exigible, it was for the Revenue to prove that the product was marketable or was capable of being marketed. Manufacturing activity, by itself, does not prove the marketability. The product produced must be a distinct commodity known in the common parlance to the commercial community for the purpose of buying and selling. Since there is no evidence of either buying or selling in the present case, it cannot be held that the product in question was marketable or was capable of being marketed. Mere transfer of BMS by the appellant from its factory at Bangalore to its own unit at Patalganga for manufacture of final product does not show that the product was either marketed or was marketable. Since the Revenue has failed to lead any evidence to show that the product in question was marketable or was capable of being marketed and that the product in question was a distinct product for being sold in the market, it has to be held that the product in question was not marketable.
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Lachminarayan Madan Lal Vs. Commissioner of Income Tax, West Bengal | No reasons were given in support of that conclusion. The A. A. C. has not examined the evidence before him. He has not considered whether that evidence was believable or not. On the other hand the Tribunal for the reasons it has stated was not able to place reliance on it.10. Mr. Setalvad invited our attention to number of decisions in support of his contention that the Tribunals order is a prima facie perverse order. We shall now consider those decisions.11. In Dhirajlal Girdharilal v Commissioner of Income-tax, Bombay; 26 ITR 736 = (AIR l955 SC : 271) this Court ruled that when a Court of fact acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the Court was affected by the irrelevant material used by it in arriving at its finding. Such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises. In this case, we have not been able to accept Mr. Setalvads contention that any part of the evidence relied on by the Tribunal was either irrelevant or inadmissible. Hence this decision has no bearing on the point in issue in this case.12. In Commissioner of Income-tax West Bengal-II v. Rajasthan Mines Ltd., 78 ITR 45 = (AIR 1970 SC 1560 ) this Court held that it is open to the parties to challenge a conclusion of fact drawn by the Tribunal on the ground that it is not supported by any legal evidence or that the impugned conclusion drawn from the relevant facts is not rationally possible. If such a plea is established, the Court has to consider whether the conclusion in question is not perverse and should not therefore, be set aside. It is not possible to say on the facts and in the circumstances of this case that the conclusion of fact drawn by the Tribunal is not supported by any legal evidence or that the same could not be rationally arrived at.13. In Commissioner of Income-tax, Gujarat v. A. Raman and Co., 67 ITR 11 = (AIR 1968 SC 49 ) this Court restated the well accepted proposition that the law does not oblige a trader to make the maximum profit that he can out of his trading transactions. Income which accrues to a trader is taxable in his hands but income which he could have, but has not earned, is not made taxable as income accrued to him. Avoidance of tax liability by so arranging commercial affairs that charge of tax is distributed is not prohibited. A tax payer may resort to a device to divert the income before it accrues or arises to him. Effectiveness of the device depends not upon considerations of morality but on the operation of the Income-tax Act. But this Court in the same case further observed that by adopting a device, if it is made to appear that the income which belonged to the assessee had been earned by some other person, that income may be brought to tax in the hands of the assesses.14. According to the findings given by the Tribunal this case belongs to the latter category namely that the assessee by adopting a device has made to appear that the income which belonged to it had been earned by some other person.15. Mr. Setalvad placed considerable reliance on the decision of this Court in Commissioner of Income-tax, Punjab v. Indian Woollen Textile Mills, 51 ITR 291 = (AIR 1964 SC 735 ). Therein this Court observed that in that case the Tribunal assumed the only fact on which its conclusion was founded and had ignored other relevant matters on which A. A. C. had relied in support of its conclusion. Consequently the Tribunal must be held to have misdirected itself in law in arriving at its finding. We have earlier considered the contention of Mr. Setalvad that the Tribunal had misdirected itself but we have not been able to accept the same. Hence the ratio of this decision is of no assistance to the appellant.16. Reference was also made to the decision of this Court in Commissioner of Income-tax West Bengal-II v. Durga Prasad More, 82 ITR 540 = (AIR 1971 SC 2439 ). We fail to see how this decision can lend any assistance to the appellants case. In that case this Court reversing the decision of the High Court held that it could not be said that the finding of the Tribunal as to the unreality of the trust put forward was not based on evidence or was otherwise vitiated.17. In our opinion the facts of this case come within the rule laid down by this Court in Swadeshi Cotton Mills Co. Ltd. v. Commr. of Income-tax, U. P., (1967) 63 ITR 57 (SC).The question whether an amount claimed as an expenditure was laid out or expended wholly and exclusively for the purpose of the business has to be decided on the facts and in the light of the circumstances in each case. The mere existence of an agreement between the assesses and its selling agents or payment of certain amounts as commission assuming there was such payment does not bind the Income-tax Officer to hold that the payment was made exclusively and wholly for the purpose of the assessees business. Although there might be such an agreement in existence and the payments might have been made, it is still open to the Income-tax Officer to consider the relevant factors and determine for himself whether the commission said to have been paid to the selling agents or any part thereof is properly deductible under S. 37 of the Act.18. For the reasons mentioned above, we are of opinion that the Tribunal was justified in not stating a case for the opinion of the High Court under Section 256 (1) of the Act and the High Court was justified in not calling for a statement of case under sub-section (2) of Section 256.19 | 0[ds]14. According to the findings given by the Tribunal this case belongs to the latter category namely that the assessee by adopting a device has made to appear that the income which belonged to it had been earned by some other person.15. Mr. Setalvad placed considerable reliance on the decision of this Court in Commissioner of Income-tax, Punjab v. Indian Woollen Textile Mills, 51 ITR 291 = (AIR 1964 SC 735 ). Therein this Court observed that in that case the Tribunal assumed the only fact on which its conclusion was founded and had ignored other relevant matters on which A. A. C. had relied in support of its conclusion. Consequently the Tribunal must be held to have misdirected itself in law in arriving at its finding. We have earlier considered the contention of Mr. Setalvad that the Tribunal had misdirected itself but we have not been able to accept the same. Hence the ratio of this decision is of no assistance to the appellant.16. Reference was also made to the decision of this Court in Commissioner of Income-tax West Bengal-II v. Durga Prasad More, 82 ITR 540 = (AIR 1971 SC 2439 ). We fail to see how this decision can lend any assistance to the appellants case. In that case this Court reversing the decision of the High Court held that it could not be said that the finding of the Tribunal as to the unreality of the trust put forward was not based on evidence or was otherwise vitiated.17. In our opinion the facts of this case come within the rule laid down by this Court in Swadeshi Cotton Mills Co. Ltd. v. Commr. of Income-tax, U. P., (1967) 63 ITR 57 (SC).The question whether an amount claimed as an expenditure was laid out or expended wholly and exclusively for the purpose of the business has to be decided on the facts and in the light of the circumstances in each case. The mere existence of an agreement between the assesses and its selling agents or payment of certain amounts as commission assuming there was such payment does not bind the Income-tax Officer to hold that the payment was made exclusively and wholly for the purpose of the assessees business. Although there might be such an agreement in existence and the payments might have been made, it is still open to the Income-tax Officer to consider the relevant factors and determine for himself whether the commission said to have been paid to the selling agents or any part thereof is properly deductible under S. 37 of the Act. | 0 | 2,996 | 463 | ### 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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No reasons were given in support of that conclusion. The A. A. C. has not examined the evidence before him. He has not considered whether that evidence was believable or not. On the other hand the Tribunal for the reasons it has stated was not able to place reliance on it.10. Mr. Setalvad invited our attention to number of decisions in support of his contention that the Tribunals order is a prima facie perverse order. We shall now consider those decisions.11. In Dhirajlal Girdharilal v Commissioner of Income-tax, Bombay; 26 ITR 736 = (AIR l955 SC : 271) this Court ruled that when a Court of fact acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the Court was affected by the irrelevant material used by it in arriving at its finding. Such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises. In this case, we have not been able to accept Mr. Setalvads contention that any part of the evidence relied on by the Tribunal was either irrelevant or inadmissible. Hence this decision has no bearing on the point in issue in this case.12. In Commissioner of Income-tax West Bengal-II v. Rajasthan Mines Ltd., 78 ITR 45 = (AIR 1970 SC 1560 ) this Court held that it is open to the parties to challenge a conclusion of fact drawn by the Tribunal on the ground that it is not supported by any legal evidence or that the impugned conclusion drawn from the relevant facts is not rationally possible. If such a plea is established, the Court has to consider whether the conclusion in question is not perverse and should not therefore, be set aside. It is not possible to say on the facts and in the circumstances of this case that the conclusion of fact drawn by the Tribunal is not supported by any legal evidence or that the same could not be rationally arrived at.13. In Commissioner of Income-tax, Gujarat v. A. Raman and Co., 67 ITR 11 = (AIR 1968 SC 49 ) this Court restated the well accepted proposition that the law does not oblige a trader to make the maximum profit that he can out of his trading transactions. Income which accrues to a trader is taxable in his hands but income which he could have, but has not earned, is not made taxable as income accrued to him. Avoidance of tax liability by so arranging commercial affairs that charge of tax is distributed is not prohibited. A tax payer may resort to a device to divert the income before it accrues or arises to him. Effectiveness of the device depends not upon considerations of morality but on the operation of the Income-tax Act. But this Court in the same case further observed that by adopting a device, if it is made to appear that the income which belonged to the assessee had been earned by some other person, that income may be brought to tax in the hands of the assesses.14. According to the findings given by the Tribunal this case belongs to the latter category namely that the assessee by adopting a device has made to appear that the income which belonged to it had been earned by some other person.15. Mr. Setalvad placed considerable reliance on the decision of this Court in Commissioner of Income-tax, Punjab v. Indian Woollen Textile Mills, 51 ITR 291 = (AIR 1964 SC 735 ). Therein this Court observed that in that case the Tribunal assumed the only fact on which its conclusion was founded and had ignored other relevant matters on which A. A. C. had relied in support of its conclusion. Consequently the Tribunal must be held to have misdirected itself in law in arriving at its finding. We have earlier considered the contention of Mr. Setalvad that the Tribunal had misdirected itself but we have not been able to accept the same. Hence the ratio of this decision is of no assistance to the appellant.16. Reference was also made to the decision of this Court in Commissioner of Income-tax West Bengal-II v. Durga Prasad More, 82 ITR 540 = (AIR 1971 SC 2439 ). We fail to see how this decision can lend any assistance to the appellants case. In that case this Court reversing the decision of the High Court held that it could not be said that the finding of the Tribunal as to the unreality of the trust put forward was not based on evidence or was otherwise vitiated.17. In our opinion the facts of this case come within the rule laid down by this Court in Swadeshi Cotton Mills Co. Ltd. v. Commr. of Income-tax, U. P., (1967) 63 ITR 57 (SC).The question whether an amount claimed as an expenditure was laid out or expended wholly and exclusively for the purpose of the business has to be decided on the facts and in the light of the circumstances in each case. The mere existence of an agreement between the assesses and its selling agents or payment of certain amounts as commission assuming there was such payment does not bind the Income-tax Officer to hold that the payment was made exclusively and wholly for the purpose of the assessees business. Although there might be such an agreement in existence and the payments might have been made, it is still open to the Income-tax Officer to consider the relevant factors and determine for himself whether the commission said to have been paid to the selling agents or any part thereof is properly deductible under S. 37 of the Act.18. For the reasons mentioned above, we are of opinion that the Tribunal was justified in not stating a case for the opinion of the High Court under Section 256 (1) of the Act and the High Court was justified in not calling for a statement of case under sub-section (2) of Section 256.19
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14. According to the findings given by the Tribunal this case belongs to the latter category namely that the assessee by adopting a device has made to appear that the income which belonged to it had been earned by some other person.15. Mr. Setalvad placed considerable reliance on the decision of this Court in Commissioner of Income-tax, Punjab v. Indian Woollen Textile Mills, 51 ITR 291 = (AIR 1964 SC 735 ). Therein this Court observed that in that case the Tribunal assumed the only fact on which its conclusion was founded and had ignored other relevant matters on which A. A. C. had relied in support of its conclusion. Consequently the Tribunal must be held to have misdirected itself in law in arriving at its finding. We have earlier considered the contention of Mr. Setalvad that the Tribunal had misdirected itself but we have not been able to accept the same. Hence the ratio of this decision is of no assistance to the appellant.16. Reference was also made to the decision of this Court in Commissioner of Income-tax West Bengal-II v. Durga Prasad More, 82 ITR 540 = (AIR 1971 SC 2439 ). We fail to see how this decision can lend any assistance to the appellants case. In that case this Court reversing the decision of the High Court held that it could not be said that the finding of the Tribunal as to the unreality of the trust put forward was not based on evidence or was otherwise vitiated.17. In our opinion the facts of this case come within the rule laid down by this Court in Swadeshi Cotton Mills Co. Ltd. v. Commr. of Income-tax, U. P., (1967) 63 ITR 57 (SC).The question whether an amount claimed as an expenditure was laid out or expended wholly and exclusively for the purpose of the business has to be decided on the facts and in the light of the circumstances in each case. The mere existence of an agreement between the assesses and its selling agents or payment of certain amounts as commission assuming there was such payment does not bind the Income-tax Officer to hold that the payment was made exclusively and wholly for the purpose of the assessees business. Although there might be such an agreement in existence and the payments might have been made, it is still open to the Income-tax Officer to consider the relevant factors and determine for himself whether the commission said to have been paid to the selling agents or any part thereof is properly deductible under S. 37 of the Act.
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M.P. Steel Corporation Vs. Commnr. Of Central Excise | appeal being a substantive right always acts prospectively. It is trite law that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation.24. Right of appeal may be a substantive right but the procedure for filing the appeal including the period of limitation cannot be called a substantive right, and an aggrieved person cannot claim any vested right claiming that he should be governed by the old provision pertaining to period of limitation. Procedural law is retrospective meaning thereby that it will apply even to acts or transactions under the repealed Act.25. Law on the subject has also been elaborately dealt with by this Court in various decisions and reference may be made to a few of those decisions. This Court in Garikapati Veeraya v. N. Subbiah Choudhry [AIR 1957 SC 540 ] , New India Insurance Co. Ltd. v. Shanti Misra [(1975) 2 SCC 840] , Hitendra Vishnu Thakur v. State of Maharashtra [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087 ] , Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar [(1999) 8 SCC 16] and Shyam Sunder v. Ram Kumar [(2001) 8 SCC 24] , has elaborately discussed the scope and ambit of an amending legislation and its retrospectivity and held that every litigant has a vested right in substantive law but no such right exists in procedural law. This Court has held that the law relating to forum and limitation is procedural in nature whereas law relating to right of appeal even though remedial is substantive in nature.26. Therefore, unless the language used plainly manifests in express terms or by necessary implication a contrary intention a statute divesting vested rights is to be construed as prospective, a statute merely procedural is to be construed as retrospective and a statute which while procedural in its character, affects vested rights adversely is to be construed as prospective.” 51. This judgment was strongly relied upon by Shri A.K. Sanghi for the proposition that the law in force on the date of the institution of an appeal, irrespective of the date of accrual of the cause of action for filing an appeal, will govern the period of limitation. Ordinarily, this may well be the case. As has been noticed above, periods of limitation being procedural in nature would apply retrospectively. On the facts in the judgment in the Thirumalai case, it was held that the repealed provision contained in the Foreign Exchange Regulation Act, namely, Section 52 would not apply to an appeal filed long after 1.6.2000 when the Foreign Exchange Management Act came into force, repealing the Foreign Exchange Regulation Act. It is significant to note that Section 52(2) of the repealed Act provided a period of limitation of 45 plus 45 days and no more whereas Section 19(2) of FEMA provided for 45 days with no cap thereafter provided sufficient cause to condone delay is shown. On facts, in that case, the appeal was held to be properly instituted under Section 19, which as has been stated earlier, had no cap to condonation of delay. It was, therefore, held that the Appellate Tribunal in that case could entertain the appeal even after the period of 90 days had expired provided sufficient cause for the delay was made out. 52. The present case stands on a slightly different footing. The abortive appeal had been filed against orders passed in March- April, 1992. The present appeal was filed under Section 128, which Section continues on the statute book till date. Before its amendment in 2001, it provided a maximum period of 180 days within which an appeal could be filed. Time began to run on 3.4.1992 under Section 128 pre amendment when the appellant received the order of the Superintendent of Customs intimating it about an order passed by the Collector of Customs on 25.3.1992. Under Section 128 as it then stood a person aggrieved by a decision or order passed by a Superintendent of Customs could appeal to the Collector (Appeals) within three months from the date of communication to him of such decision or order. On the principles contained in Section 14 of the Limitation Act the time taken in prosecuting an abortive proceeding would have to be excluded as the appellant was prosecuting bona fide with due diligence the appeal before CEGAT which was allowed in its favour by CEGAT on 23.6.1998. The Department preferred an appeal against the said order sometime in the year 2000 which appeal was decided in their favour by this court only on 12.3.2003 by which CEGAT’s order was set aside on the ground that CEGAT had no jurisdiction to entertain such appeal. The time taken from 12.3.2003 to 23.5.2003, on which date the present appeal was filed before the Commissioner (Appeals) would be within the period of 180 days provided by the pre amended Section 128, when added to the time taken between 3.4.1992 and 22.6.1992. The amended Section 128 has now reduced this period, with effect from 2001, to 60 days plus 30 days, which is 90 days. The order that is challenged in the present case was passed before 2001. The right of appeal within a period of 180 days (which includes the discretionary period of 90 days) from the date of the said order was a right which vested in the appellant. A shadow was cast by the abortive appeal from 1992 right upto 2003. This shadow was lifted when it became clear that the proceeding filed in1992 was a proceeding before the wrong forum. The vested right of appeal within the period of 180 days had not yet got over. Upon the lifting of the shadow, a certain residuary period within which a proper appeal could be filed still remained. That period would continue to be within the period of 180 days notwithstanding the amendment made in 2001 as otherwise the right to appeal itself would vanish given the shorter period of limitation provided by Section 128 after 2001. | 1[ds]8. A perusal of the Limitation Act, 1963 would show that the bar of limitation contained in the Schedule to the Act applies to suits, appeals, and applications.is defined in Section 2(l) as not including an appeal or an application.In the Schedule, the second division concerns itself with appeals. These appeals under Articles 114 to 117, are either under the Civil Procedure Code, the Criminal Procedure Code, or intra-court appeals so far as the High Courts are concerned.Section 21 also makes it clear that the suit that the Limitation Act speaks of is instituted only by a plaintiff against a defendant. Both plaintiff and defendant have been defined as including persons through whom they derive their right to sue and include persons whose estate is represented by persons such as executors, administrators or other representatives.It is clear that this judgment clearly laid down two things – one that authorities under the Sales Tax Act are notand thus, the Limitation Act will not apply to them. It also laid down that the language of Section 10 (3-B) of the U.P. Sales Tax Act made it clear that an unusually long period of limitation had been given for filing a revision application and therefore said that the said Section as construed by the Court would not be unduly oppressive. Most cases would, according to the Court, be filed within a maximum period of 18 months but even in cases, rare as they are, filed beyond such period, the revising authority may on its own motion entertain the revision and grant relief. Given the three features of the U.P. Sales Tax Act scheme, the Court held that the legislature deliberately excluded the application of the principle underlying Section 14 except to the limited extent that it may amount to sufficient cause for condoning delay within the period of 18 months.Obviously, the ratio of Mukri Gopalan does not square with the observations of the 3-Judge Bench in Consolidated Engineering Enterprises. In the latter case, this Court has unequivocally held that Parson Tools is an authority for the proposition that the Limitation Act will not apply to quasi-judicial bodies or Tribunals. To the extent that Mukri Gopalan is in conflict with the judgment in the Consolidated Engineering Enterprises case, it is no longer goodthe U.P. Sales Tax Act, there is no provision in the Customs Act which enables a party to invoke suo moto the appellate power and grant relief to a person who institutes an appeal out of time in an appropriate case. Also, Section 10 of the U.P. Sales Tax Act dealt with the filing of a revision petition after a first appeal had already been rejected, and not to a case of a first appeal as provided under Section 128 of the Customs Act. Another feature, which is of direct relevance in this case, is that for revision petitions filed under the U.P. Sales Tax Act a sufficiently long period of 18 months had been given beyond which it was the policy of the legislature not to extend limitation any further. This aspect of Parson Tools has been explained in Consolidated Engineering in some detail by both the main judgment as well as the concurring judgment. In the latter judgment, it has been pointed out that there is a vital distinction between extending time and condoning delay. Like Section 34 of the Arbitration Act, Section 128 of the Customs Act is a Section which lays down that delay cannot be condoned beyond a certain period. Like Section 34 of the Arbitration Act, Section 128 of the Customs Act does not lay down a longfact, as has been noticed above, the explanation expands the scope of Section 14 by liberalizing it. Thus, under explanation (b) a person resisting an appeal is also deemed to be prosecuting a proceeding. But for explanation (b), on a literal reading of Section 14, if a person has won in the first round of litigation and an appeal is filed by his opponent, the period of such appeal would not be liable to be excluded under the Section, leading to an absurd result. That is why a plaintiff or an applicant resisting an appeal filed by a defendant shall also be deemed to prosecute a proceeding so that the time taken in the appeal can also be the subject matter of exclusion under Section 14. Equally, explanation (c) which deems misjoinder of parties or a cause of action to be a cause of a like nature with defect of jurisdiction, expands the scope of the section. We have already noticed that the India Electric Works Ltd. judgment has held that strictly speaking misjoinder of parties or of causes of action can hardly be regarded as a defect of jurisdiction or something similar to it. Therefore properly construed, explanation (a) also confers a benefit and does not by a side wind seek to take away any other benefit that a purposive reading of Section 14 might give. We, therefore, agree with the decision of the Madhya Pradesh High Court that the period from the cause of action till the institution of appellate or revisional proceedings from original proceedings which prove to be abortive are also liable to exclusion under the Section. The view of the Andhra Pradesh High Court is too broadly stated. The period prior to institution of the initiation of any abortive proceeding cannot be excluded for the simple reason that Section 14 does not enable a litigant to get a benefit beyond what is contemplated by the Section - that is to put the litigant in the same position as if the abortive proceeding had never taken place.Shri A.K. Sanghi, learned senior counsel appearing on behalf of the revenue, has strongly contended before us that the present appeal must attract the limitation period as on the date of its filing. That being so, it is clear that the present appeal having been filed before CESTAT only on 23.5.2003, it is Section 128 post amendment that would apply and therefore the maximum period available to the appellant would be 60 plus 30 days. Even if time taken in the abortive proceedings is to be excluded, the appeal filed will be out of time being beyond the aforesaid period.45. It is settled law that periods of limitation are procedural in nature and would ordinarily be applied retrospectively. This, however, is subject to a rider.The reason for the said principle is not far to seek. Though periods of limitation, being procedural law, are to be applied retrospectively, yet if a shorter period of limitation is provided by a later amendment to a statute, such period would render the vested right of action contained in the statute nugatory as such right of action would now become time barred under the amended provision.The present case stands on a slightly different footing. The abortive appeal had been filed against orders passed in March- April, 1992. The present appeal was filed under Section 128, which Section continues on the statute book till date. Before its amendment in 2001, it provided a maximum period of 180 days within which an appeal could be filed. Time began to run on 3.4.1992 under Section 128 pre amendment when the appellant received the order of the Superintendent of Customs intimating it about an order passed by the Collector of Customs on 25.3.1992. Under Section 128 as it then stood a person aggrieved by a decision or order passed by a Superintendent of Customs could appeal to the Collector (Appeals) within three months from the date of communication to him of such decision or order. On the principles contained in Section 14 of the Limitation Act the time taken in prosecuting an abortive proceeding would have to be excluded as the appellant was prosecuting bona fide with due diligence the appeal before CEGAT which was allowed in its favour by CEGAT on 23.6.1998. The Department preferred an appeal against the said order sometime in the year 2000 which appeal was decided in their favour by this court only on 12.3.2003 by whichorder was set aside on the ground that CEGAT had no jurisdiction to entertain such appeal. The time taken from 12.3.2003 to 23.5.2003, on which date the present appeal was filed before the Commissioner (Appeals) would be within the period of 180 days provided by the pre amended Section 128, when added to the time taken between 3.4.1992 and 22.6.1992. The amended Section 128 has now reduced this period, with effect from 2001, to 60 days plus 30 days, which is 90 days. The order that is challenged in the present case was passed before 2001. The right of appeal within a period of 180 days (which includes the discretionary period of 90 days) from the date of the said order was a right which vested in the appellant. A shadow was cast by the abortive appeal from 1992 right upto 2003. This shadow was lifted when it became clear that the proceeding filed in1992 was a proceeding before the wrong forum. The vested right of appeal within the period of 180 days had not yet got over. Upon the lifting of the shadow, a certain residuary period within which a proper appeal could be filed still remained. That period would continue to be within the period of 180 days notwithstanding the amendment made in 2001 as otherwise the right to appeal itself would vanish given the shorter period of limitation provided by Section 128 after | 1 | 19,056 | 1,712 | ### 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:
appeal being a substantive right always acts prospectively. It is trite law that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation.24. Right of appeal may be a substantive right but the procedure for filing the appeal including the period of limitation cannot be called a substantive right, and an aggrieved person cannot claim any vested right claiming that he should be governed by the old provision pertaining to period of limitation. Procedural law is retrospective meaning thereby that it will apply even to acts or transactions under the repealed Act.25. Law on the subject has also been elaborately dealt with by this Court in various decisions and reference may be made to a few of those decisions. This Court in Garikapati Veeraya v. N. Subbiah Choudhry [AIR 1957 SC 540 ] , New India Insurance Co. Ltd. v. Shanti Misra [(1975) 2 SCC 840] , Hitendra Vishnu Thakur v. State of Maharashtra [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087 ] , Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar [(1999) 8 SCC 16] and Shyam Sunder v. Ram Kumar [(2001) 8 SCC 24] , has elaborately discussed the scope and ambit of an amending legislation and its retrospectivity and held that every litigant has a vested right in substantive law but no such right exists in procedural law. This Court has held that the law relating to forum and limitation is procedural in nature whereas law relating to right of appeal even though remedial is substantive in nature.26. Therefore, unless the language used plainly manifests in express terms or by necessary implication a contrary intention a statute divesting vested rights is to be construed as prospective, a statute merely procedural is to be construed as retrospective and a statute which while procedural in its character, affects vested rights adversely is to be construed as prospective.” 51. This judgment was strongly relied upon by Shri A.K. Sanghi for the proposition that the law in force on the date of the institution of an appeal, irrespective of the date of accrual of the cause of action for filing an appeal, will govern the period of limitation. Ordinarily, this may well be the case. As has been noticed above, periods of limitation being procedural in nature would apply retrospectively. On the facts in the judgment in the Thirumalai case, it was held that the repealed provision contained in the Foreign Exchange Regulation Act, namely, Section 52 would not apply to an appeal filed long after 1.6.2000 when the Foreign Exchange Management Act came into force, repealing the Foreign Exchange Regulation Act. It is significant to note that Section 52(2) of the repealed Act provided a period of limitation of 45 plus 45 days and no more whereas Section 19(2) of FEMA provided for 45 days with no cap thereafter provided sufficient cause to condone delay is shown. On facts, in that case, the appeal was held to be properly instituted under Section 19, which as has been stated earlier, had no cap to condonation of delay. It was, therefore, held that the Appellate Tribunal in that case could entertain the appeal even after the period of 90 days had expired provided sufficient cause for the delay was made out. 52. The present case stands on a slightly different footing. The abortive appeal had been filed against orders passed in March- April, 1992. The present appeal was filed under Section 128, which Section continues on the statute book till date. Before its amendment in 2001, it provided a maximum period of 180 days within which an appeal could be filed. Time began to run on 3.4.1992 under Section 128 pre amendment when the appellant received the order of the Superintendent of Customs intimating it about an order passed by the Collector of Customs on 25.3.1992. Under Section 128 as it then stood a person aggrieved by a decision or order passed by a Superintendent of Customs could appeal to the Collector (Appeals) within three months from the date of communication to him of such decision or order. On the principles contained in Section 14 of the Limitation Act the time taken in prosecuting an abortive proceeding would have to be excluded as the appellant was prosecuting bona fide with due diligence the appeal before CEGAT which was allowed in its favour by CEGAT on 23.6.1998. The Department preferred an appeal against the said order sometime in the year 2000 which appeal was decided in their favour by this court only on 12.3.2003 by which CEGAT’s order was set aside on the ground that CEGAT had no jurisdiction to entertain such appeal. The time taken from 12.3.2003 to 23.5.2003, on which date the present appeal was filed before the Commissioner (Appeals) would be within the period of 180 days provided by the pre amended Section 128, when added to the time taken between 3.4.1992 and 22.6.1992. The amended Section 128 has now reduced this period, with effect from 2001, to 60 days plus 30 days, which is 90 days. The order that is challenged in the present case was passed before 2001. The right of appeal within a period of 180 days (which includes the discretionary period of 90 days) from the date of the said order was a right which vested in the appellant. A shadow was cast by the abortive appeal from 1992 right upto 2003. This shadow was lifted when it became clear that the proceeding filed in1992 was a proceeding before the wrong forum. The vested right of appeal within the period of 180 days had not yet got over. Upon the lifting of the shadow, a certain residuary period within which a proper appeal could be filed still remained. That period would continue to be within the period of 180 days notwithstanding the amendment made in 2001 as otherwise the right to appeal itself would vanish given the shorter period of limitation provided by Section 128 after 2001.
### Response:
1
### Explanation:
beyond a certain period. Like Section 34 of the Arbitration Act, Section 128 of the Customs Act does not lay down a longfact, as has been noticed above, the explanation expands the scope of Section 14 by liberalizing it. Thus, under explanation (b) a person resisting an appeal is also deemed to be prosecuting a proceeding. But for explanation (b), on a literal reading of Section 14, if a person has won in the first round of litigation and an appeal is filed by his opponent, the period of such appeal would not be liable to be excluded under the Section, leading to an absurd result. That is why a plaintiff or an applicant resisting an appeal filed by a defendant shall also be deemed to prosecute a proceeding so that the time taken in the appeal can also be the subject matter of exclusion under Section 14. Equally, explanation (c) which deems misjoinder of parties or a cause of action to be a cause of a like nature with defect of jurisdiction, expands the scope of the section. We have already noticed that the India Electric Works Ltd. judgment has held that strictly speaking misjoinder of parties or of causes of action can hardly be regarded as a defect of jurisdiction or something similar to it. Therefore properly construed, explanation (a) also confers a benefit and does not by a side wind seek to take away any other benefit that a purposive reading of Section 14 might give. We, therefore, agree with the decision of the Madhya Pradesh High Court that the period from the cause of action till the institution of appellate or revisional proceedings from original proceedings which prove to be abortive are also liable to exclusion under the Section. The view of the Andhra Pradesh High Court is too broadly stated. The period prior to institution of the initiation of any abortive proceeding cannot be excluded for the simple reason that Section 14 does not enable a litigant to get a benefit beyond what is contemplated by the Section - that is to put the litigant in the same position as if the abortive proceeding had never taken place.Shri A.K. Sanghi, learned senior counsel appearing on behalf of the revenue, has strongly contended before us that the present appeal must attract the limitation period as on the date of its filing. That being so, it is clear that the present appeal having been filed before CESTAT only on 23.5.2003, it is Section 128 post amendment that would apply and therefore the maximum period available to the appellant would be 60 plus 30 days. Even if time taken in the abortive proceedings is to be excluded, the appeal filed will be out of time being beyond the aforesaid period.45. It is settled law that periods of limitation are procedural in nature and would ordinarily be applied retrospectively. This, however, is subject to a rider.The reason for the said principle is not far to seek. Though periods of limitation, being procedural law, are to be applied retrospectively, yet if a shorter period of limitation is provided by a later amendment to a statute, such period would render the vested right of action contained in the statute nugatory as such right of action would now become time barred under the amended provision.The present case stands on a slightly different footing. The abortive appeal had been filed against orders passed in March- April, 1992. The present appeal was filed under Section 128, which Section continues on the statute book till date. Before its amendment in 2001, it provided a maximum period of 180 days within which an appeal could be filed. Time began to run on 3.4.1992 under Section 128 pre amendment when the appellant received the order of the Superintendent of Customs intimating it about an order passed by the Collector of Customs on 25.3.1992. Under Section 128 as it then stood a person aggrieved by a decision or order passed by a Superintendent of Customs could appeal to the Collector (Appeals) within three months from the date of communication to him of such decision or order. On the principles contained in Section 14 of the Limitation Act the time taken in prosecuting an abortive proceeding would have to be excluded as the appellant was prosecuting bona fide with due diligence the appeal before CEGAT which was allowed in its favour by CEGAT on 23.6.1998. The Department preferred an appeal against the said order sometime in the year 2000 which appeal was decided in their favour by this court only on 12.3.2003 by whichorder was set aside on the ground that CEGAT had no jurisdiction to entertain such appeal. The time taken from 12.3.2003 to 23.5.2003, on which date the present appeal was filed before the Commissioner (Appeals) would be within the period of 180 days provided by the pre amended Section 128, when added to the time taken between 3.4.1992 and 22.6.1992. The amended Section 128 has now reduced this period, with effect from 2001, to 60 days plus 30 days, which is 90 days. The order that is challenged in the present case was passed before 2001. The right of appeal within a period of 180 days (which includes the discretionary period of 90 days) from the date of the said order was a right which vested in the appellant. A shadow was cast by the abortive appeal from 1992 right upto 2003. This shadow was lifted when it became clear that the proceeding filed in1992 was a proceeding before the wrong forum. The vested right of appeal within the period of 180 days had not yet got over. Upon the lifting of the shadow, a certain residuary period within which a proper appeal could be filed still remained. That period would continue to be within the period of 180 days notwithstanding the amendment made in 2001 as otherwise the right to appeal itself would vanish given the shorter period of limitation provided by Section 128 after
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State Vs. S.J. Choudhary | often can determine the question and by the use of photographic comparison charts he can demonstrate his findings, usually with unimpeachable certainty.From a comparison of the typewriting on a document which is a subject of controversy with specimens known to have been made on a certain typewriter it is usually possible to determine whether or not that typewriter was used in typing the subject document, provided the subject document contains sufficient typewriting and the specimens from the known machine are of a suitable kind. This is true because every typewriter when it comes off the assembly line is an individual and writes exactly like no other typewriter. When a typewriter is brand new the differences between it and other typewriters coming off the assembly line at the same time are extremely minute and elusive, but theoretically at least there are identifying differences that can be discovered by microscopic examination and demonstrated photographically. Furthermore, the more a typewriter is used the more individualistic it becomes and the easier it is to identify its typewriting. In some instances through overuse, misuse, or abuse a typewriter develops so many peculiarities that its typing can be identified readily with the naked eye." * (page 636) 15. In Law of Disputed and Forged Documents by J. Newton Baker, while dealing with the basic principles of identification of Typewriting generally it is stated : ".......Since typewriting possesses individually it can be compared and identified in the same manner as handwriting....." (page 453) Therein while discussing individuality of typewriting, it is stated thus : "The individuality of the typewriter is established by the character of its type impressions on the paper. These characteristics of typewriting can be analyzed, compared and differentiated and can be positively identified as those of a particular typewriter. This individual comparison and identification of characteristics may establish the genuineness or forgery of a typewritten instrument and when admitted in evidence is sufficient proof.The occurrence of similar irregularities in typewriting in two or more machines is practically impossible. The rule that the typewriter creates for itself a certain distinctive character of writing which identifies one certain machine from all other machines is well established. To prove that two instruments were written on a particular typewriter similar coincidences of characteristics must be shown in both instruments, and these coincidences considered collectively must demand a single conclusion." * (pages 451-452) 16. In Typewriting Identification (Identification System for Questioned Typewriting) by Billy Prior Bates, the conclusion of the principles is stated thus : "ConclusionTYPEWRITING identification is based on the same principle underlying handwriting identification, or any other thing which has a great number of possible variations.The identification of a typewritten document can be likened to the identification of a particular person. A person may be identified in general by his sex, size, features etc., and in addition, for example, by a radical mastectomy scar. A typewriter may be identified in general by characteristics such as type design and size, possessed by all machines of a specific make and model, and in addition, for example, by a flaw in the serif on the letter E.No opinion as to identify should be based upon only a few dissimilarities (or similarities). It is the combination of measurements and characteristics which altogether make up the Conclusion.When good, clear specimens are available in sufficient amount for a scientific identification of the twelve points of comparison, it is possible to show with absolute certainty that a document was, or was not, produced by a particular machine.The mathematical probability of the same combination of these characteristics divergent from the norm appearing in two machines is practically nil. The evidence of the twelve points of comparison can be conclusive proof." (page 59) 17. It is, therefore, clear that the examination of typewriting and identification of the typewriter on which the questioned document was typed is based on a scientific study of certain significant features of the typewriter peculiar to a particular typewriter and its individuality which can be studied by an expert having professional skill in the subject and, therefore, his opinion on that point relates to an aspect in the field of science which falls within the ambit of Section 45 of the Indian Evidence Act. Such opinion evidence of experts in the field has long been treated as admissible evidence in similar jurisdictions like United States as is evident from these standard textbooks on the subject.18. In the present case, even without resort to the word handwriting in Section 45 to include typewriting therein, in the view we have taken, the word science is wide enough to meet the requirement of treating the opinion of a typewriter expert as an opinion evidence coming within the ambit of Section 45 of the Evidence Act. We may, however, add that the long accepted practice of judicial construction which enabled the reading of the word telegraph to include telephone within the meaning of that word in Acts of 1863 and 1869 when telephone was not invented, would also be available in the present case to read typewriting within the meaning of word handwriting in the Act of 1872. This is so because what was understood by handwriting in 1872 must now in the present times after more than a century of the enactment of that provision, be necessarily understood to include typewriting as well, since typing has become more common than handwriting and this change is on account of the availability of typewriters and their common use much after the statute was enacted in 1872. This is an additional reason for us to hold that the opinion of the typewriter expert in this context is admissible under Section 45 of the Indian Evidence Act.19. As a result of the above discussion, we hold that the observations made in the above extract in the decision in Hanumant on the basis of a concession does not reflect the correct position of law on this point and should, therefore, be treated as no longer good law on the point. | 1[ds]6. In our opinion, irrespective of the view taken on the question of meaning of the word handwriting in Section 45 to include typewriting, the word science, occurring independently and in addition to the word handwriting in Section 45, is sufficient to indicate that the opinion of a person specially skilled in the use of typewriters and having the scientific knowledge of typewriters would be an expert in this science; and his opinion about the identity of typewriting for the purpose of identifying the particular typewriter on which the writing is typed is a relevant fact under Section 45 of the Evidence Act. It is obvious that the Indian Evidence Act when enacted originally in 1872 did not specifically mention typewriting in addition to handwriting because typewriters were then practically unknown. However, the expression science, or art in Section 45 in addition to the expressions foreign law and handwriting used in the Section as originally enacted, and the expression finger impressions inserted in 1899 is sufficient to indicate that the expression science, or art therein is of wide import. This expression science, or art cannot, therefore, have a narrow meaning in Section 45 and each of the words science and art has to be construed widely to include within its ambit the opinion of an expert in each branch of these subjects, whenever the Court has to form an opinion upon a point relating to any aspect of science or art.It is clear from the meaning of the word science that the skill or technique of the study of the peculiar features of a typewriter and the comparison of the disputed typewriting with the admitted typewriting on a particular typewriter to determine whether the disputed typewriting was done on the same typewriter is based on a scientific study of the two typewritings with reference to the peculiarities therein; and the opinion formed by an expert is based on recognised principles regulating the scientific study. The opinion so formed by a person having the requisite special skill in the subject is, therefore, the opinion of an expert in that branch of the science. Such an opinion is the opinion of an expert in a branch of science which is admissible in evidence under Section 45 of the Indian Evidence Act.9. There cannot be any doubt that the opinion of an expert in typewritings about the questioned typed document being typed on a particular typewriter is based on a scientific study of the typewriting with reference to the significant peculiar features of a particular typewriter and the ultimate opinion of the expert is based on scientific grounds. The opinion of a typewriter expert is an opinion of a person specially skilled in that branch of the science with reference to which the Court has to form an opinion on the point involved for decision in the case. In our opinion, on a plain construction of Section 45 giving to the word science used therein its natural meaning, this conclusion is inevitable, and for supporting that conclusion, it is not necessary to rely on the further reason that the word handwriting in Section 45 would also include typewriting.It is, therefore, clear that the examination of typewriting and identification of the typewriter on which the questioned document was typed is based on a scientific study of certain significant features of the typewriter peculiar to a particular typewriter and its individuality which can be studied by an expert having professional skill in the subject and, therefore, his opinion on that point relates to an aspect in the field of science which falls within the ambit of Section 45 of the Indian Evidence Act. Such opinion evidence of experts in the field has long been treated as admissible evidence in similar jurisdictions like United States as is evident from these standard textbooks on the subject.18. In the present case, even without resort to the word handwriting in Section 45 to include typewriting therein, in the view we have taken, the word science is wide enough to meet the requirement of treating the opinion of a typewriter expert as an opinion evidence coming within the ambit of Section 45 of the Evidence Act. We may, however, add that the long accepted practice of judicial construction which enabled the reading of the word telegraph to include telephone within the meaning of that word in Acts of 1863 and 1869 when telephone was not invented, would also be available in the present case to read typewriting within the meaning of word handwriting in the Act of 1872. This is so because what was understood by handwriting in 1872 must now in the present times after more than a century of the enactment of that provision, be necessarily understood to include typewriting as well, since typing has become more common than handwriting and this change is on account of the availability of typewriters and their common use much after the statute was enacted in 1872. This is an additional reason for us to hold that the opinion of the typewriter expert in this context is admissible under Section 45 of the Indian Evidence Act.19. As a result of the above discussion, we hold that the observations made in the above extract in the decision in Hanumant on the basis of a concession does not reflect the correct position of law on this point and should, therefore, be treated as no longer good law on the point. | 1 | 3,782 | 963 | ### 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:
often can determine the question and by the use of photographic comparison charts he can demonstrate his findings, usually with unimpeachable certainty.From a comparison of the typewriting on a document which is a subject of controversy with specimens known to have been made on a certain typewriter it is usually possible to determine whether or not that typewriter was used in typing the subject document, provided the subject document contains sufficient typewriting and the specimens from the known machine are of a suitable kind. This is true because every typewriter when it comes off the assembly line is an individual and writes exactly like no other typewriter. When a typewriter is brand new the differences between it and other typewriters coming off the assembly line at the same time are extremely minute and elusive, but theoretically at least there are identifying differences that can be discovered by microscopic examination and demonstrated photographically. Furthermore, the more a typewriter is used the more individualistic it becomes and the easier it is to identify its typewriting. In some instances through overuse, misuse, or abuse a typewriter develops so many peculiarities that its typing can be identified readily with the naked eye." * (page 636) 15. In Law of Disputed and Forged Documents by J. Newton Baker, while dealing with the basic principles of identification of Typewriting generally it is stated : ".......Since typewriting possesses individually it can be compared and identified in the same manner as handwriting....." (page 453) Therein while discussing individuality of typewriting, it is stated thus : "The individuality of the typewriter is established by the character of its type impressions on the paper. These characteristics of typewriting can be analyzed, compared and differentiated and can be positively identified as those of a particular typewriter. This individual comparison and identification of characteristics may establish the genuineness or forgery of a typewritten instrument and when admitted in evidence is sufficient proof.The occurrence of similar irregularities in typewriting in two or more machines is practically impossible. The rule that the typewriter creates for itself a certain distinctive character of writing which identifies one certain machine from all other machines is well established. To prove that two instruments were written on a particular typewriter similar coincidences of characteristics must be shown in both instruments, and these coincidences considered collectively must demand a single conclusion." * (pages 451-452) 16. In Typewriting Identification (Identification System for Questioned Typewriting) by Billy Prior Bates, the conclusion of the principles is stated thus : "ConclusionTYPEWRITING identification is based on the same principle underlying handwriting identification, or any other thing which has a great number of possible variations.The identification of a typewritten document can be likened to the identification of a particular person. A person may be identified in general by his sex, size, features etc., and in addition, for example, by a radical mastectomy scar. A typewriter may be identified in general by characteristics such as type design and size, possessed by all machines of a specific make and model, and in addition, for example, by a flaw in the serif on the letter E.No opinion as to identify should be based upon only a few dissimilarities (or similarities). It is the combination of measurements and characteristics which altogether make up the Conclusion.When good, clear specimens are available in sufficient amount for a scientific identification of the twelve points of comparison, it is possible to show with absolute certainty that a document was, or was not, produced by a particular machine.The mathematical probability of the same combination of these characteristics divergent from the norm appearing in two machines is practically nil. The evidence of the twelve points of comparison can be conclusive proof." (page 59) 17. It is, therefore, clear that the examination of typewriting and identification of the typewriter on which the questioned document was typed is based on a scientific study of certain significant features of the typewriter peculiar to a particular typewriter and its individuality which can be studied by an expert having professional skill in the subject and, therefore, his opinion on that point relates to an aspect in the field of science which falls within the ambit of Section 45 of the Indian Evidence Act. Such opinion evidence of experts in the field has long been treated as admissible evidence in similar jurisdictions like United States as is evident from these standard textbooks on the subject.18. In the present case, even without resort to the word handwriting in Section 45 to include typewriting therein, in the view we have taken, the word science is wide enough to meet the requirement of treating the opinion of a typewriter expert as an opinion evidence coming within the ambit of Section 45 of the Evidence Act. We may, however, add that the long accepted practice of judicial construction which enabled the reading of the word telegraph to include telephone within the meaning of that word in Acts of 1863 and 1869 when telephone was not invented, would also be available in the present case to read typewriting within the meaning of word handwriting in the Act of 1872. This is so because what was understood by handwriting in 1872 must now in the present times after more than a century of the enactment of that provision, be necessarily understood to include typewriting as well, since typing has become more common than handwriting and this change is on account of the availability of typewriters and their common use much after the statute was enacted in 1872. This is an additional reason for us to hold that the opinion of the typewriter expert in this context is admissible under Section 45 of the Indian Evidence Act.19. As a result of the above discussion, we hold that the observations made in the above extract in the decision in Hanumant on the basis of a concession does not reflect the correct position of law on this point and should, therefore, be treated as no longer good law on the point.
### Response:
1
### Explanation:
6. In our opinion, irrespective of the view taken on the question of meaning of the word handwriting in Section 45 to include typewriting, the word science, occurring independently and in addition to the word handwriting in Section 45, is sufficient to indicate that the opinion of a person specially skilled in the use of typewriters and having the scientific knowledge of typewriters would be an expert in this science; and his opinion about the identity of typewriting for the purpose of identifying the particular typewriter on which the writing is typed is a relevant fact under Section 45 of the Evidence Act. It is obvious that the Indian Evidence Act when enacted originally in 1872 did not specifically mention typewriting in addition to handwriting because typewriters were then practically unknown. However, the expression science, or art in Section 45 in addition to the expressions foreign law and handwriting used in the Section as originally enacted, and the expression finger impressions inserted in 1899 is sufficient to indicate that the expression science, or art therein is of wide import. This expression science, or art cannot, therefore, have a narrow meaning in Section 45 and each of the words science and art has to be construed widely to include within its ambit the opinion of an expert in each branch of these subjects, whenever the Court has to form an opinion upon a point relating to any aspect of science or art.It is clear from the meaning of the word science that the skill or technique of the study of the peculiar features of a typewriter and the comparison of the disputed typewriting with the admitted typewriting on a particular typewriter to determine whether the disputed typewriting was done on the same typewriter is based on a scientific study of the two typewritings with reference to the peculiarities therein; and the opinion formed by an expert is based on recognised principles regulating the scientific study. The opinion so formed by a person having the requisite special skill in the subject is, therefore, the opinion of an expert in that branch of the science. Such an opinion is the opinion of an expert in a branch of science which is admissible in evidence under Section 45 of the Indian Evidence Act.9. There cannot be any doubt that the opinion of an expert in typewritings about the questioned typed document being typed on a particular typewriter is based on a scientific study of the typewriting with reference to the significant peculiar features of a particular typewriter and the ultimate opinion of the expert is based on scientific grounds. The opinion of a typewriter expert is an opinion of a person specially skilled in that branch of the science with reference to which the Court has to form an opinion on the point involved for decision in the case. In our opinion, on a plain construction of Section 45 giving to the word science used therein its natural meaning, this conclusion is inevitable, and for supporting that conclusion, it is not necessary to rely on the further reason that the word handwriting in Section 45 would also include typewriting.It is, therefore, clear that the examination of typewriting and identification of the typewriter on which the questioned document was typed is based on a scientific study of certain significant features of the typewriter peculiar to a particular typewriter and its individuality which can be studied by an expert having professional skill in the subject and, therefore, his opinion on that point relates to an aspect in the field of science which falls within the ambit of Section 45 of the Indian Evidence Act. Such opinion evidence of experts in the field has long been treated as admissible evidence in similar jurisdictions like United States as is evident from these standard textbooks on the subject.18. In the present case, even without resort to the word handwriting in Section 45 to include typewriting therein, in the view we have taken, the word science is wide enough to meet the requirement of treating the opinion of a typewriter expert as an opinion evidence coming within the ambit of Section 45 of the Evidence Act. We may, however, add that the long accepted practice of judicial construction which enabled the reading of the word telegraph to include telephone within the meaning of that word in Acts of 1863 and 1869 when telephone was not invented, would also be available in the present case to read typewriting within the meaning of word handwriting in the Act of 1872. This is so because what was understood by handwriting in 1872 must now in the present times after more than a century of the enactment of that provision, be necessarily understood to include typewriting as well, since typing has become more common than handwriting and this change is on account of the availability of typewriters and their common use much after the statute was enacted in 1872. This is an additional reason for us to hold that the opinion of the typewriter expert in this context is admissible under Section 45 of the Indian Evidence Act.19. As a result of the above discussion, we hold that the observations made in the above extract in the decision in Hanumant on the basis of a concession does not reflect the correct position of law on this point and should, therefore, be treated as no longer good law on the point.
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Commnr. Of Customs Vs. M/S. Ferodo India Pvt. Ltd | and brake pads (licensed products). The said payments were in no way related to the imported items. In the present case, no effort was made by the Department to examine the pricing arrangement. No effort was made by the Department to ascertain whether there exists a price adjustment between cost incurred by the buyer on account of royalty/licence fees payments and the price paid for imported items. No effort was made by the Department to ascertain enhancement of royalty/licence fees by reducing the price of the imported items. In the circumstances, we find no infirmity in the impugned judgment of the Tribunal. In this case, the Department has gone by TAA alone. On reading TAA in entirety, we are of the view that there was no nexus between royalty/licence fees payable for the know-how and the goods imported for the manufacture of licensed products. The Department itself has invoked rule 9(1)(c).21. In the alternate, it has invoked rule 9(1)(e). This rule 9(e) cannot stand alone. It is a corollary to rule 4. There is no finding in the present case that what was termed as royalty/licence fee was in fact not such royalty/licence fee but some other payment made or to be made as a condition pre-requisite to the sale of the imported goods. It is important to bear in mind that rule 9 refers to cost and services. Under rule 9(1), the price for the imported goods had to be enhanced/loaded by adding certain costs, royalties and licence fees and values mentioned in sub-rules 9(1)(a) to 9(1)(d). It refers to "all other payments actually made or to be made as a condition of sale of the imported goods." In the present case, the Department invoked rule 9(1)(c) on the ground that royalty was related to the imported goods, having failed it cannot fall back upon rule 9(1)(e) because essentially we are concerned with the addition of royalty etc. to the price of the imported goods. Further, in the present case, the Department has accepted the transaction value of the imported goods. 22. In the case of Essar Gujarat Ltd. (supra), the buyer had entered into a contract with TIL for purchase of Direct Reduction Iron Plant ("the plant"). The entire agreement was for import of the plant. The agreement was subject to two conditions- (a) approval of G.O.I. and (b) obtaining transfer of licence from M/s Midrex, USA. Without the licence from Midrex, the imported plant was of no use to the buyer. Therefore, it was essential to have the licence from Midrex to operate the plant. Therefore, it was held by this Court that procurement of licence from Midrex was a pre-condition of sale which was specifically recorded in the agreement itself. In view of specific terms and conditions to that effect in the agreement, this Court held that payments made to Midrex by way of licence fees had to be added to the price paid to TIL for purchase of the plant. There is no such stipulations in the TAA in the present case. Therefore, in our view, the adjudicating authority erred in placing reliance on the judgment of this Court in Essar Gujarat Ltd. (supra). 23. In the case of Matsushita Television & Audio India Ltd. v. CoC reported in 2007 (211) ELT 200 (SC) the question which arose for determination was whether royalty amount was attributable to the price of the imported goods. In that case, the appellant was a joint venture company of MEI, Japan and SIL for obtaining technical assistance and know-how. Under the agreement, the appellants were to pay MEI a royalty @ 3% on net ex-factory sale price of the colour TV receivers manufactured by the appellants for the technical assistance rendered by MEI. The appellants were to pay a lump-sum amount of U.S. $ 2 lakhs to MEI for transfer of technical know-how. It was the case of the appellant that payment of royalty was not related to imported goods as the said payment was made for supply of technical assistance and not as a condition pre-requisite for the sale of the components. 24. One of the questions which arises for determination in this civil appeal is whether reliance could be placed by the Department only on the Consideration Clause in the TAA for arriving at the conclusion that payment for royalty was includible in the price of the important components. 25. Rule 4(3)(b) of the CVR, 1988 provides for an opportunity for the importer to demonstrate that the transaction value closely approximates to a "test" value. A number of factors, therefore, have to be taken into consideration in determining whether one value "closely approximates" to another value. These factors include the nature of the imported goods, the nature of the industry itself, the difference in values etc.. As stated above, rule 4(3)(a) and rule 4(3)(b) of the CVR, 1988 provides for different means of establishing the acceptability of a transaction value. In the case of Matsushita Television (supra) the pricing arrangement was not produced before the Department. In our view, the Consideration Clause in such circumstances is of relevance. As stated above, pricing arrangement and TAA are both to be seen by the Department. As stated above, in a given case, if the Consideration Clause indicates that the importer/buyer had adjusted the price of the imported goods in guise of enhanced royalty or if the Department finds that the buyer had misled the Department by such pricing adjustments then the adjudicating authority would be justified in adding the royalty/licence fees payment to the price of the imported goods. Therefore, it cannot be said that the consideration clause in TAA is not relevant. Ultimately, the test of close approximation of values require all circumstances to be taken into account. It is keeping in mind the Consideration Clause along with other surrounding circumstances that the Tribunal in the case of Matsushita Television (supra) had taken the view that royalty payment had to be added to the price of the imported goods. | 0[ds]18. Royalties and licence fees related to the imported goods is the cost which is incurred by the buyer in addition to the price which the buyer has to pay as consideration for the purchase of the imported goods. In other words, in addition to the price for the imported goods the buyer incurs costs on account of royalty and licence fee which the buyer pays to the foreign supplier for using information, patent, trade mark and know-how in the manufacture of the licensed product in India. Therefore, there are two concepts which operate simultaneously, namely, price for the imported goods and the royalties/licence fees which are also paid to the foreign supplier. Rule 9(1)(c) stipulates that payments made towards technical know-how must be a condition pre-requisite for the supply of imported goods by the foreign supplier and if such condition exists then such royalties and fees have to be included in the price of the imported goods. Under rule 9(1)(c) the cost of technical know-how is included if the same is to be paid, directly or indirectly, as a condition of the sale of imported goods. At this stage, we would like to emphasis the word indirectly in rule 9(1)(c). As stated above, the buyer/importer makes payment of the price of the imported goods. He also incurs the cost of technical know-how. Therefore, the Department in every case is not only required to look at TAA, it is also required to look at the pricing arrangement/agreement between the buyer and his foreign collaborator. For example if on examination of the pricing arrangement in juxtaposition with the TAA, the Department finds that the importer/buyer has misled the Department by adjusting the price of the imported item in guise of increased royalty/licence fees then the adjudicating authority would be right in including the cost of royalty/licence fees payment in the price of the imported goods. In such cases the principle of attribution of royalty/licence fees to the price of imported goods would apply. This is because every importer/buyer is obliged to pay not only the price for the imported goods but he also incurs the cost of technical know-how which is paid to the foreign supplier. Therefore, such adjustments would certainly attract rule 9(1))(c).Applying the above tests to the facts of the present case, we find that the adjudicating authority had not examined the pricing arrangement between the foreign collaborator and the buyer. It has only examined the royalty/TAA.20. Be that as it may, in the present case, on reading TAA we find that the payments of royalty/licence fees was entirely relatable to the manufacture of brake liners and brake pads (licensed products). The said payments were in no way related to the imported items. In the present case, no effort was made by the Department to examine the pricing arrangement. No effort was made by the Department to ascertain whether there exists a price adjustment between cost incurred by the buyer on account of royalty/licence fees payments and the price paid for imported items. No effort was made by the Department to ascertain enhancement of royalty/licence fees by reducing the price of the imported items. In the circumstances, we find no infirmity in the impugned judgment of the Tribunal. In this case, the Department has gone by TAA alone. On reading TAA in entirety, we are of the view that there was no nexus between royalty/licence fees payable for the know-how and the goods imported for the manufacture of licensed products. The Department itself has invoked rule 9(1)(c).21. In the alternate, it has invoked rule 9(1)(e). This rule 9(e) cannot stand alone. It is a corollary to rule 4. There is no finding in the present case that what was termed as royalty/licence fee was in fact not such royalty/licence fee but some other payment made or to be made as a condition pre-requisite to the sale of the imported goods. It is important to bear in mind that rule 9 refers to cost and services. Under rule 9(1), the price for the imported goods had to be enhanced/loaded by adding certain costs, royalties and licence fees and values mentioned in sub-rules 9(1)(a) to 9(1)(d). It refers to "all other payments actually made or to be made as a condition of sale of the imported goods." In the present case, the Department invoked rule 9(1)(c) on the ground that royalty was related to the imported goods, having failed it cannot fall back upon rule 9(1)(e) because essentially we are concerned with the addition of royalty etc. to the price of the imported goods. Further, in the present case, the Department has accepted the transaction value of the imported goods.Rule 4(3)(b) of the CVR, 1988 provides for an opportunity for the importer to demonstrate that the transaction value closely approximates to a "test" value. A number of factors, therefore, have to be taken into consideration in determining whether one value "closely approximates" to another value. These factors include the nature of the imported goods, the nature of the industry itself, the difference in values etc.. As stated above, rule 4(3)(a) and rule 4(3)(b) of the CVR, 1988 provides for different means of establishing the acceptability of a transaction value. In the case of Matsushita Television (supra) the pricing arrangement was not produced before the Department. In our view, the Consideration Clause in such circumstances is of relevance. As stated above, pricing arrangement and TAA are both to be seen by the Department. As stated above, in a given case, if the Consideration Clause indicates that the importer/buyer had adjusted the price of the imported goods in guise of enhanced royalty or if the Department finds that the buyer had misled the Department by such pricing adjustments then the adjudicating authority would be justified in adding the royalty/licence fees payment to the price of the imported goods. Therefore, it cannot be said that the consideration clause in TAA is not relevant. Ultimately, the test of close approximation of values require all circumstances to be taken into account. It is keeping in mind the Consideration Clause along with other surrounding circumstances that the Tribunal in the case of Matsushita Television (supra) had taken the view that royalty payment had to be added to the price of the imported goods. | 0 | 4,162 | 1,237 | ### Instruction:
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and brake pads (licensed products). The said payments were in no way related to the imported items. In the present case, no effort was made by the Department to examine the pricing arrangement. No effort was made by the Department to ascertain whether there exists a price adjustment between cost incurred by the buyer on account of royalty/licence fees payments and the price paid for imported items. No effort was made by the Department to ascertain enhancement of royalty/licence fees by reducing the price of the imported items. In the circumstances, we find no infirmity in the impugned judgment of the Tribunal. In this case, the Department has gone by TAA alone. On reading TAA in entirety, we are of the view that there was no nexus between royalty/licence fees payable for the know-how and the goods imported for the manufacture of licensed products. The Department itself has invoked rule 9(1)(c).21. In the alternate, it has invoked rule 9(1)(e). This rule 9(e) cannot stand alone. It is a corollary to rule 4. There is no finding in the present case that what was termed as royalty/licence fee was in fact not such royalty/licence fee but some other payment made or to be made as a condition pre-requisite to the sale of the imported goods. It is important to bear in mind that rule 9 refers to cost and services. Under rule 9(1), the price for the imported goods had to be enhanced/loaded by adding certain costs, royalties and licence fees and values mentioned in sub-rules 9(1)(a) to 9(1)(d). It refers to "all other payments actually made or to be made as a condition of sale of the imported goods." In the present case, the Department invoked rule 9(1)(c) on the ground that royalty was related to the imported goods, having failed it cannot fall back upon rule 9(1)(e) because essentially we are concerned with the addition of royalty etc. to the price of the imported goods. Further, in the present case, the Department has accepted the transaction value of the imported goods. 22. In the case of Essar Gujarat Ltd. (supra), the buyer had entered into a contract with TIL for purchase of Direct Reduction Iron Plant ("the plant"). The entire agreement was for import of the plant. The agreement was subject to two conditions- (a) approval of G.O.I. and (b) obtaining transfer of licence from M/s Midrex, USA. Without the licence from Midrex, the imported plant was of no use to the buyer. Therefore, it was essential to have the licence from Midrex to operate the plant. Therefore, it was held by this Court that procurement of licence from Midrex was a pre-condition of sale which was specifically recorded in the agreement itself. In view of specific terms and conditions to that effect in the agreement, this Court held that payments made to Midrex by way of licence fees had to be added to the price paid to TIL for purchase of the plant. There is no such stipulations in the TAA in the present case. Therefore, in our view, the adjudicating authority erred in placing reliance on the judgment of this Court in Essar Gujarat Ltd. (supra). 23. In the case of Matsushita Television & Audio India Ltd. v. CoC reported in 2007 (211) ELT 200 (SC) the question which arose for determination was whether royalty amount was attributable to the price of the imported goods. In that case, the appellant was a joint venture company of MEI, Japan and SIL for obtaining technical assistance and know-how. Under the agreement, the appellants were to pay MEI a royalty @ 3% on net ex-factory sale price of the colour TV receivers manufactured by the appellants for the technical assistance rendered by MEI. The appellants were to pay a lump-sum amount of U.S. $ 2 lakhs to MEI for transfer of technical know-how. It was the case of the appellant that payment of royalty was not related to imported goods as the said payment was made for supply of technical assistance and not as a condition pre-requisite for the sale of the components. 24. One of the questions which arises for determination in this civil appeal is whether reliance could be placed by the Department only on the Consideration Clause in the TAA for arriving at the conclusion that payment for royalty was includible in the price of the important components. 25. Rule 4(3)(b) of the CVR, 1988 provides for an opportunity for the importer to demonstrate that the transaction value closely approximates to a "test" value. A number of factors, therefore, have to be taken into consideration in determining whether one value "closely approximates" to another value. These factors include the nature of the imported goods, the nature of the industry itself, the difference in values etc.. As stated above, rule 4(3)(a) and rule 4(3)(b) of the CVR, 1988 provides for different means of establishing the acceptability of a transaction value. In the case of Matsushita Television (supra) the pricing arrangement was not produced before the Department. In our view, the Consideration Clause in such circumstances is of relevance. As stated above, pricing arrangement and TAA are both to be seen by the Department. As stated above, in a given case, if the Consideration Clause indicates that the importer/buyer had adjusted the price of the imported goods in guise of enhanced royalty or if the Department finds that the buyer had misled the Department by such pricing adjustments then the adjudicating authority would be justified in adding the royalty/licence fees payment to the price of the imported goods. Therefore, it cannot be said that the consideration clause in TAA is not relevant. Ultimately, the test of close approximation of values require all circumstances to be taken into account. It is keeping in mind the Consideration Clause along with other surrounding circumstances that the Tribunal in the case of Matsushita Television (supra) had taken the view that royalty payment had to be added to the price of the imported goods.
### Response:
0
### Explanation:
price for the imported goods the buyer incurs costs on account of royalty and licence fee which the buyer pays to the foreign supplier for using information, patent, trade mark and know-how in the manufacture of the licensed product in India. Therefore, there are two concepts which operate simultaneously, namely, price for the imported goods and the royalties/licence fees which are also paid to the foreign supplier. Rule 9(1)(c) stipulates that payments made towards technical know-how must be a condition pre-requisite for the supply of imported goods by the foreign supplier and if such condition exists then such royalties and fees have to be included in the price of the imported goods. Under rule 9(1)(c) the cost of technical know-how is included if the same is to be paid, directly or indirectly, as a condition of the sale of imported goods. At this stage, we would like to emphasis the word indirectly in rule 9(1)(c). As stated above, the buyer/importer makes payment of the price of the imported goods. He also incurs the cost of technical know-how. Therefore, the Department in every case is not only required to look at TAA, it is also required to look at the pricing arrangement/agreement between the buyer and his foreign collaborator. For example if on examination of the pricing arrangement in juxtaposition with the TAA, the Department finds that the importer/buyer has misled the Department by adjusting the price of the imported item in guise of increased royalty/licence fees then the adjudicating authority would be right in including the cost of royalty/licence fees payment in the price of the imported goods. In such cases the principle of attribution of royalty/licence fees to the price of imported goods would apply. This is because every importer/buyer is obliged to pay not only the price for the imported goods but he also incurs the cost of technical know-how which is paid to the foreign supplier. Therefore, such adjustments would certainly attract rule 9(1))(c).Applying the above tests to the facts of the present case, we find that the adjudicating authority had not examined the pricing arrangement between the foreign collaborator and the buyer. It has only examined the royalty/TAA.20. Be that as it may, in the present case, on reading TAA we find that the payments of royalty/licence fees was entirely relatable to the manufacture of brake liners and brake pads (licensed products). The said payments were in no way related to the imported items. In the present case, no effort was made by the Department to examine the pricing arrangement. No effort was made by the Department to ascertain whether there exists a price adjustment between cost incurred by the buyer on account of royalty/licence fees payments and the price paid for imported items. No effort was made by the Department to ascertain enhancement of royalty/licence fees by reducing the price of the imported items. In the circumstances, we find no infirmity in the impugned judgment of the Tribunal. In this case, the Department has gone by TAA alone. On reading TAA in entirety, we are of the view that there was no nexus between royalty/licence fees payable for the know-how and the goods imported for the manufacture of licensed products. The Department itself has invoked rule 9(1)(c).21. In the alternate, it has invoked rule 9(1)(e). This rule 9(e) cannot stand alone. It is a corollary to rule 4. There is no finding in the present case that what was termed as royalty/licence fee was in fact not such royalty/licence fee but some other payment made or to be made as a condition pre-requisite to the sale of the imported goods. It is important to bear in mind that rule 9 refers to cost and services. Under rule 9(1), the price for the imported goods had to be enhanced/loaded by adding certain costs, royalties and licence fees and values mentioned in sub-rules 9(1)(a) to 9(1)(d). It refers to "all other payments actually made or to be made as a condition of sale of the imported goods." In the present case, the Department invoked rule 9(1)(c) on the ground that royalty was related to the imported goods, having failed it cannot fall back upon rule 9(1)(e) because essentially we are concerned with the addition of royalty etc. to the price of the imported goods. Further, in the present case, the Department has accepted the transaction value of the imported goods.Rule 4(3)(b) of the CVR, 1988 provides for an opportunity for the importer to demonstrate that the transaction value closely approximates to a "test" value. A number of factors, therefore, have to be taken into consideration in determining whether one value "closely approximates" to another value. These factors include the nature of the imported goods, the nature of the industry itself, the difference in values etc.. As stated above, rule 4(3)(a) and rule 4(3)(b) of the CVR, 1988 provides for different means of establishing the acceptability of a transaction value. In the case of Matsushita Television (supra) the pricing arrangement was not produced before the Department. In our view, the Consideration Clause in such circumstances is of relevance. As stated above, pricing arrangement and TAA are both to be seen by the Department. As stated above, in a given case, if the Consideration Clause indicates that the importer/buyer had adjusted the price of the imported goods in guise of enhanced royalty or if the Department finds that the buyer had misled the Department by such pricing adjustments then the adjudicating authority would be justified in adding the royalty/licence fees payment to the price of the imported goods. Therefore, it cannot be said that the consideration clause in TAA is not relevant. Ultimately, the test of close approximation of values require all circumstances to be taken into account. It is keeping in mind the Consideration Clause along with other surrounding circumstances that the Tribunal in the case of Matsushita Television (supra) had taken the view that royalty payment had to be added to the price of the imported goods.
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Visakapatnam Municipal Corporation Vs. K. Satyanarayana and Company | 1. The short question involved in these appeals is whether the trial court could have granted interest pendente lite to the respondent although the arbitrators had declined to grant the same and the respondent had not filed any objection to the award under Section 30 of the Arbitration Act (the Act) 2. The relevant facts are that the arbitrators made their Award on 20-4-1989. The respondent had prayed for interest pendente lite but the arbitrators depending upon the law as it obtained on that date, had declined the relief. Thereafter, the award was filed before the trial court, i.e., the IInd Additional Subordinate Judge, Visakhapatnam and the appellant herein filed their petition under Section 30 of the Act. However, admittedly, the respondent did not file any objection under the said provision. Subsequently, in the year 1991, i.e., about two years after the filing of the award in the court, the respondent filed a petition before the trial court for a decree in terms of the award. In this petition, no doubt the respondent claimed interest from the date of reference till the date of payment. The trial court, while making a decree in terms of the award granted interest from the date of reference till the date of payment which obviously included the interest pendente lite. The appellant approached the High Court by an appeal making a grievance about the pendente lite interest granted in favour of the respondent. The High Court relying upon the later decision of this Court in Secretary, Irrigation Department, Government of Orissa v. G. C. Roy delivered on 12-12-1991 upheld the grant of pendente lite interest and dismissed the appellants appeal before it. It is this decision which is challenged before us 3. On the admitted facts, viz., that the respondent had not preferred any objection to the award in question under Section 30 of the Act and, in fact, had applied for a decree in terms of the award, the trial court could not have granted pendente lite interest which was not a part of the award. To that extent, the trial court had exceeded its jurisdiction. The learned counsel appearing for the respondent tried to defend the action of the trial court relying upon the provisions of Section 15(b) of the Act. The said provisions read as follows"15. Power of Court to modify award. - The Court may by order modify or correct an award - (a) * * *(b) where the award is imperfect in form, or contains any obvious error which can be amended without affecting such decision; " * The learned counsel contended that in view of the later decision of this Court in G. C. Roy case it was an obvious error on the part of the arbitrators not to grant the interest and, therefore, the trial court was justified in correcting the said error. We are afraid that the expression "obvious error" is sought to be interpreted by the learned counsel without the context in which the expression appears. It is made clear in the said provision that obvious error must be such which can be amended without affecting the decision. Any addition of the amount of interest which is specifically denied by the arbitrators is bound to affect the award in substantial measure. Hence the reliance placed on the said provision is obviously misplaced. The learned counsel then relied upon the order of this Court in Shakambari & Co. v. Union of India where after condoning the delay in filing the special leave petition, this Court had given the benefit of pendente lite interest in a proceeding which was already closed. It is not clear from this order as to whether any objection was taken to the award before the trial court under Section 30 of the Act on the ground that the pendente lite interest was wrongfully denied and whether the trial court had negatived the claim and the party concerned, had not chosen to file the appeal against the trial courts decision in view of the ten law on the subject. It appears from the other proceeding which has been dealt with by the very same order, that in that case, arbitrator had in fact, granted interest pendente lite and that was upheld by this Court in view of the aforesaid decision of this Court. This order is, therefore, not helpful for the respondent4. We are, therefore, of the view that if the respondent had not raised any objections to the award, it was not open for the trial court to grant the pendente lite interest while passing the decree in terms of the award. Both, therefore, the trial court as well as the High Court were wrong in awarding the interest. | 1[ds]We are afraid that the expression "obvious error" is sought to be interpreted by the learned counsel without the context in which the expression appears. It is made clear in the said provision that obvious error must be such which can be amended without affecting the decision. Any addition of the amount of interest which is specifically denied by the arbitrators is bound to affect the award in substantial measure. Hence the reliance placed on the said provision is obviouslyis not clear from this order as to whether any objection was taken to the award before the trial court under Section 30 of the Act on the ground that the pendente lite interest was wrongfully denied and whether the trial court had negatived the claim and the party concerned, had not chosen to file the appeal against the trial courts decision in view of the ten law on the subject. It appears from the other proceeding which has been dealt with by the very same order, that in that case, arbitrator had in fact, granted interest pendente lite and that was upheld by this Court in view of the aforesaid decision of this Court. This order is, therefore, not helpful for the respondent4. We are, therefore, of the view that if the respondent had not raised any objections to the award, it was not open for the trial court to grant the pendente lite interest while passing the decree in terms of the award. Both, therefore, the trial court as well as the High Court were wrong in awarding the interest. | 1 | 866 | 286 | ### Instruction:
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### Input:
1. The short question involved in these appeals is whether the trial court could have granted interest pendente lite to the respondent although the arbitrators had declined to grant the same and the respondent had not filed any objection to the award under Section 30 of the Arbitration Act (the Act) 2. The relevant facts are that the arbitrators made their Award on 20-4-1989. The respondent had prayed for interest pendente lite but the arbitrators depending upon the law as it obtained on that date, had declined the relief. Thereafter, the award was filed before the trial court, i.e., the IInd Additional Subordinate Judge, Visakhapatnam and the appellant herein filed their petition under Section 30 of the Act. However, admittedly, the respondent did not file any objection under the said provision. Subsequently, in the year 1991, i.e., about two years after the filing of the award in the court, the respondent filed a petition before the trial court for a decree in terms of the award. In this petition, no doubt the respondent claimed interest from the date of reference till the date of payment. The trial court, while making a decree in terms of the award granted interest from the date of reference till the date of payment which obviously included the interest pendente lite. The appellant approached the High Court by an appeal making a grievance about the pendente lite interest granted in favour of the respondent. The High Court relying upon the later decision of this Court in Secretary, Irrigation Department, Government of Orissa v. G. C. Roy delivered on 12-12-1991 upheld the grant of pendente lite interest and dismissed the appellants appeal before it. It is this decision which is challenged before us 3. On the admitted facts, viz., that the respondent had not preferred any objection to the award in question under Section 30 of the Act and, in fact, had applied for a decree in terms of the award, the trial court could not have granted pendente lite interest which was not a part of the award. To that extent, the trial court had exceeded its jurisdiction. The learned counsel appearing for the respondent tried to defend the action of the trial court relying upon the provisions of Section 15(b) of the Act. The said provisions read as follows"15. Power of Court to modify award. - The Court may by order modify or correct an award - (a) * * *(b) where the award is imperfect in form, or contains any obvious error which can be amended without affecting such decision; " * The learned counsel contended that in view of the later decision of this Court in G. C. Roy case it was an obvious error on the part of the arbitrators not to grant the interest and, therefore, the trial court was justified in correcting the said error. We are afraid that the expression "obvious error" is sought to be interpreted by the learned counsel without the context in which the expression appears. It is made clear in the said provision that obvious error must be such which can be amended without affecting the decision. Any addition of the amount of interest which is specifically denied by the arbitrators is bound to affect the award in substantial measure. Hence the reliance placed on the said provision is obviously misplaced. The learned counsel then relied upon the order of this Court in Shakambari & Co. v. Union of India where after condoning the delay in filing the special leave petition, this Court had given the benefit of pendente lite interest in a proceeding which was already closed. It is not clear from this order as to whether any objection was taken to the award before the trial court under Section 30 of the Act on the ground that the pendente lite interest was wrongfully denied and whether the trial court had negatived the claim and the party concerned, had not chosen to file the appeal against the trial courts decision in view of the ten law on the subject. It appears from the other proceeding which has been dealt with by the very same order, that in that case, arbitrator had in fact, granted interest pendente lite and that was upheld by this Court in view of the aforesaid decision of this Court. This order is, therefore, not helpful for the respondent4. We are, therefore, of the view that if the respondent had not raised any objections to the award, it was not open for the trial court to grant the pendente lite interest while passing the decree in terms of the award. Both, therefore, the trial court as well as the High Court were wrong in awarding the interest.
### Response:
1
### Explanation:
We are afraid that the expression "obvious error" is sought to be interpreted by the learned counsel without the context in which the expression appears. It is made clear in the said provision that obvious error must be such which can be amended without affecting the decision. Any addition of the amount of interest which is specifically denied by the arbitrators is bound to affect the award in substantial measure. Hence the reliance placed on the said provision is obviouslyis not clear from this order as to whether any objection was taken to the award before the trial court under Section 30 of the Act on the ground that the pendente lite interest was wrongfully denied and whether the trial court had negatived the claim and the party concerned, had not chosen to file the appeal against the trial courts decision in view of the ten law on the subject. It appears from the other proceeding which has been dealt with by the very same order, that in that case, arbitrator had in fact, granted interest pendente lite and that was upheld by this Court in view of the aforesaid decision of this Court. This order is, therefore, not helpful for the respondent4. We are, therefore, of the view that if the respondent had not raised any objections to the award, it was not open for the trial court to grant the pendente lite interest while passing the decree in terms of the award. Both, therefore, the trial court as well as the High Court were wrong in awarding the interest.
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INDIAN COMMODITY EXCHANGE LIMITED Vs. NEPTUNE OVERSEAS LIMITED & ORS | there should have been a cussedness in handing over mere copies of documents when serious allegations and serious consequences which would flow to the respondents herein. Not only that, the endeavour to conclude the proceedings within a span of two weeks thereafter cannot, in our view, be said to be an adequate opportunity as has been found by the SAT. An opportunity of hearing is not a mere nicety but a valuable right. That it does not fall in a straitjacket formula is no doubt the accepted legal position [Dharampal Satyapal Ltd. (supra) ].The question is whether there was substantial compliance of the principles of natural justice [Chairman, Board of Mining Examination (supra) ] and whether there were unnecessary adjournments being sought, which were declined [Titaghur Paper Mills Co. Ltd. and Anr. (supra) and Cement Workers Karamchari Sangh (supra) ] 34. We do feel that there was an endeavour to some extent by Respondent No.2 herein to prolong the proceedings but then looking into the enormity of the contents of the show cause notice running into 150 pages with documents spanning 4,000 pages supporting it, a reasonable time had to be given to respond to the same. We may note that the whole enquiry was at the behest of independent enterprising journalist. The manner in which the proceedings were sought to be closed raises serious doubts in our mind that a fair process and opportunity has been extended to Respondent No.2 herein. 35. Insofar as Respondent No.1 herein is concerned, not even a formal show cause notice has been issued. However, the fact remains that the communications addressed by Respondent Nos.1 and 2 herein do give rise to a clear and unequivocal view that it was understood as a notice both to Respondent Nos.1 and 2 herein. That is how the parties understood it. There is no doubt about the fact that Respondent No.1 herein made an endeavour to approach the High Court challenging the show cause notice at that time without being joined by Respondent No.2 herein -though it was through Respondent No.2 but that endeavour failed as the proceedings before the FMC had not culminated into any order. It is only in the Letters Patent Appeal filed against that the order of the FMC dated 23.7.2011 was sought to be assailed and Respondent No.2 herein joined the proceedings as a party in his personal capacity. There is, thus, to some extent truth in what has been alleged by the appellants before us, i.e., that Respondent Nos.1 and 2 herein are conveniently playing this game of coming up separately even though they are joined in all purposes. We are conscious of the fact that Respondent No.1 herein is a separate legal entity being a registered company, but the concept of piercing the veil is not unknown to law. By this process, the law either goes behind the corporate personality to the individual members or ignores the separate personality of the company. This course is adopted when it is found that the principle of corporate personality is flagrantly opposed to justice, convenience or the interest of the Revenue. (New Horizons Limited and Another v. Union of India and Others. (1995) 1 SCC 478 ) We are, thus, not able to hold that there was a failure to serve show cause notice to Respondent No.1 herein merely because no such notice was specifically addressed to it. We are conscious of the fact that there was some concession made before the Division Bench of the Gujarat High Court by the counsel for the FMC. Be that as it may, we are of the view that it would be a hyper technicality now to say that Respondent No.1 herein should be served a fresh show cause notice, more so in view of the directions which we are proceeding to pass in the present judgment. 36. We now come to the plea based on the directions passed by this Court on 7.3.2018 in the earlier appeal. No doubt the findings of the Division Bench of the High Court based on the violation of the principles of natural justice were set aside. But this setting aside will have to be read in the context of the fact that it was felt that Respondent Nos.1 and 2 had an adequate alternative remedy of appeal before the SAT. Not too much can be read into the use of the expression that the appeal had to be decided on merits. The merits of a case include of factual and legal pleas. A plea of lack of opportunity to defend its case is also a legal plea. The order read as a whole only gives rise to the conclusion that the hearing was shifted to the SAT instead of before the High Court, in view of it being the competent body 37. Similarly, the continuation of the interim order passed ealier in those proceedings on 22.3.2012, has to be read in the context of other consequential proceedings having been initiated. The objective was that those proceedings should not be brought to a naught at this stage; but even those were to abide by the result of the appeal before the SAT. We may also note with regret that on the one hand it has been contended by the appellant that so many different proceedings have emanated and, thus, giving a fresh opportunity by issuing a fresh show cause notice having fresh proceedings before the SEBI would serve no effective purpose and yet the summary of those proceedings given to us show hardly any progress. It is not as if those proceedings are anywhere near an advanced stage. 38. The impugned order of the SAT dated 18.10.2019 is predicated on a plea of lack of adequate opportunity and there is no examination on merits. The questions, thus, arises what would be the appropriate directions to be passed since Respondent Nos.1 and 2 have to succeed in view of our aforesaid observations and what will be the nature of relegated proceedings. | 1[ds]21. We have gone through the record before us and perused the synopses placed before us apart from the submissions made in Court.22. The stand of the ICEL becomes relevant to the extent that the order of the SAT is predicated on ICEL not being served the show cause notice. This really does not withstand scrutiny, for the reason they had not sought so and, in fact, are themselves in appeal before us. Thus, the denial of opportunity to be heard is really being claimed only by Respondent Nos.1 and 2 herein. In fact, what has been urged before us by the ICEL is that, while the challenge before the Gujarat High Court was laid only by Respondent No.1 herein, it is Respondent No.2 herein who was simultaneously seeking adjournments before the FMC on one pretext or the other. This is despite the fact that Respondent Nos.1 and 2 herein were addressing communications to the FMC interchangeably on the same subject matter. As such, Respondent No.1 herein was fully aware of the show cause notice and acknowledged the same as one, which had been addressed to the said respondent. Not only that, there was no grievance ever made at the stage of final hearing before the learned Single Judge about the absence of show cause notice. This aspect was sought to be brought in only at the stage of appeal, for the first time, that too by amending it after the order dated 23.7.2011 was passed wherein the acts of Respondent No.2 herein of siphoning off money and interlinked issues was stated to require investigation and an adverse finding resulted. However, to our mind, that is not very relevant at this stage because that would amount to going into the merits of the controversy, which is not to be examined by us.30. The task before us is all the more difficult because both set of arguments in a sense would have their appeal at the first blush. We have, thus, endeavoured to charter a course based on the pleas and the documents before us, as also the manner of conduct of the proceedings by the FMC and the nature of defences, technical or on merits sought to be raised by the first two respondents.31. We have no doubt that a proper show cause notice was served on Respondent No.2 herein. The moot point, however, remains as to what is the effect of not serving him with the documents he sought for and within the compass of time, which was given to him to respond.32. Once again, it may be stated that a large part of the documents would have been within the custody of the Respondent No. 2 herein or for that matter with Respondent No.1 herein. However, this would not encompass all the documents. Not only that, when reliance is placed on as many as 4,000 pages of documents, it would not be fair to expect that the party in question ferrets through its own record trying to locate the documents, when on basis of formation of an opinion for issuance of the show cause notice, logic and requirement of law both would dictate that the show cause notice should be comprehensive enough with full supporting documents being handed over. The answer cannot be that they are free to inspect 4,000 pages on their own! In fact, in so many terms, ultimately most of those documents were made available and it would not be appropriate to go back into the issue of whether the documents should have been supplied or not. In a sense, that chapter closed with the supply of documents on 5.7.2011 even though some more documents were sought thereafter.33. We fail to appreciate why there should have been a cussedness in handing over mere copies of documents when serious allegations and serious consequences which would flow to the respondents herein. Not only that, the endeavour to conclude the proceedings within a span of two weeks thereafter cannot, in our view, be said to be an adequate opportunity as has been found by the SAT. An opportunity of hearing is not a mere nicety but a valuable right. That it does not fall in a straitjacket formula is no doubt the accepted legal position [Dharampal Satyapal Ltd. (supra) ].The question is whether there was substantial compliance of the principles of natural justice [Chairman, Board of Mining Examination (supra) ] and whether there were unnecessary adjournments being sought, which were declined [Titaghur Paper Mills Co. Ltd. and Anr. (supra) and Cement Workers Karamchari Sangh (supra) ]34. We do feel that there was an endeavour to some extent by Respondent No.2 herein to prolong the proceedings but then looking into the enormity of the contents of the show cause notice running into 150 pages with documents spanning 4,000 pages supporting it, a reasonable time had to be given to respond to the same. We may note that the whole enquiry was at the behest of independent enterprising journalist. The manner in which the proceedings were sought to be closed raises serious doubts in our mind that a fair process and opportunity has been extended to Respondent No.2 herein.35. Insofar as Respondent No.1 herein is concerned, not even a formal show cause notice has been issued. However, the fact remains that the communications addressed by Respondent Nos.1 and 2 herein do give rise to a clear and unequivocal view that it was understood as a notice both to Respondent Nos.1 and 2 herein. That is how the parties understood it. There is no doubt about the fact that Respondent No.1 herein made an endeavour to approach the High Court challenging the show cause notice at that time without being joined by Respondent No.2 herein -though it was through Respondent No.2 but that endeavour failed as the proceedings before the FMC had not culminated into any order. It is only in the Letters Patent Appeal filed against that the order of the FMC dated 23.7.2011 was sought to be assailed and Respondent No.2 herein joined the proceedings as a party in his personal capacity. There is, thus, to some extent truth in what has been alleged by the appellants before us, i.e., that Respondent Nos.1 and 2 herein are conveniently playing this game of coming up separately even though they are joined in all purposes. We are conscious of the fact that Respondent No.1 herein is a separate legal entity being a registered company, but the concept of piercing the veil is not unknown to law. By this process, the law either goes behind the corporate personality to the individual members or ignores the separate personality of the company. This course is adopted when it is found that the principle of corporate personality is flagrantly opposed to justice, convenience or the interest of the Revenue. (New Horizons Limited and Another v. Union of India and Others. (1995) 1 SCC 478 ) We are, thus, not able to hold that there was a failure to serve show cause notice to Respondent No.1 herein merely because no such notice was specifically addressed to it. We are conscious of the fact that there was some concession made before the Division Bench of the Gujarat High Court by the counsel for the FMC. Be that as it may, we are of the view that it would be a hyper technicality now to say that Respondent No.1 herein should be served a fresh show cause notice, more so in view of the directions which we are proceeding to pass in the present judgment.36. We now come to the plea based on the directions passed by this Court on 7.3.2018 in the earlier appeal. No doubt the findings of the Division Bench of the High Court based on the violation of the principles of natural justice were set aside. But this setting aside will have to be read in the context of the fact that it was felt that Respondent Nos.1 and 2 had an adequate alternative remedy of appeal before the SAT. Not too much can be read into the use of the expression that the appeal had to be decided on merits. The merits of a case include of factual and legal pleas. A plea of lack of opportunity to defend its case is also a legal plea. The order read as a whole only gives rise to the conclusion that the hearing was shifted to the SAT instead of before the High Court, in view of it being the competent body37. Similarly, the continuation of the interim order passed ealier in those proceedings on 22.3.2012, has to be read in the context of other consequential proceedings having been initiated. The objective was that those proceedings should not be brought to a naught at this stage; but even those were to abide by the result of the appeal before the SAT. We may also note with regret that on the one hand it has been contended by the appellant that so many different proceedings have emanated and, thus, giving a fresh opportunity by issuing a fresh show cause notice having fresh proceedings before the SEBI would serve no effective purpose and yet the summary of those proceedings given to us show hardly any progress. It is not as if those proceedings are anywhere near an advanced stage.38. The impugned order of the SAT dated 18.10.2019 is predicated on a plea of lack of adequate opportunity and there is no examination on merits. The questions, thus, arises what would be the appropriate directions to be passed since Respondent Nos.1 and 2 have to succeed in view of our aforesaid observations and what will be the nature of relegated proceedings. | 1 | 6,345 | 1,749 | ### 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:
there should have been a cussedness in handing over mere copies of documents when serious allegations and serious consequences which would flow to the respondents herein. Not only that, the endeavour to conclude the proceedings within a span of two weeks thereafter cannot, in our view, be said to be an adequate opportunity as has been found by the SAT. An opportunity of hearing is not a mere nicety but a valuable right. That it does not fall in a straitjacket formula is no doubt the accepted legal position [Dharampal Satyapal Ltd. (supra) ].The question is whether there was substantial compliance of the principles of natural justice [Chairman, Board of Mining Examination (supra) ] and whether there were unnecessary adjournments being sought, which were declined [Titaghur Paper Mills Co. Ltd. and Anr. (supra) and Cement Workers Karamchari Sangh (supra) ] 34. We do feel that there was an endeavour to some extent by Respondent No.2 herein to prolong the proceedings but then looking into the enormity of the contents of the show cause notice running into 150 pages with documents spanning 4,000 pages supporting it, a reasonable time had to be given to respond to the same. We may note that the whole enquiry was at the behest of independent enterprising journalist. The manner in which the proceedings were sought to be closed raises serious doubts in our mind that a fair process and opportunity has been extended to Respondent No.2 herein. 35. Insofar as Respondent No.1 herein is concerned, not even a formal show cause notice has been issued. However, the fact remains that the communications addressed by Respondent Nos.1 and 2 herein do give rise to a clear and unequivocal view that it was understood as a notice both to Respondent Nos.1 and 2 herein. That is how the parties understood it. There is no doubt about the fact that Respondent No.1 herein made an endeavour to approach the High Court challenging the show cause notice at that time without being joined by Respondent No.2 herein -though it was through Respondent No.2 but that endeavour failed as the proceedings before the FMC had not culminated into any order. It is only in the Letters Patent Appeal filed against that the order of the FMC dated 23.7.2011 was sought to be assailed and Respondent No.2 herein joined the proceedings as a party in his personal capacity. There is, thus, to some extent truth in what has been alleged by the appellants before us, i.e., that Respondent Nos.1 and 2 herein are conveniently playing this game of coming up separately even though they are joined in all purposes. We are conscious of the fact that Respondent No.1 herein is a separate legal entity being a registered company, but the concept of piercing the veil is not unknown to law. By this process, the law either goes behind the corporate personality to the individual members or ignores the separate personality of the company. This course is adopted when it is found that the principle of corporate personality is flagrantly opposed to justice, convenience or the interest of the Revenue. (New Horizons Limited and Another v. Union of India and Others. (1995) 1 SCC 478 ) We are, thus, not able to hold that there was a failure to serve show cause notice to Respondent No.1 herein merely because no such notice was specifically addressed to it. We are conscious of the fact that there was some concession made before the Division Bench of the Gujarat High Court by the counsel for the FMC. Be that as it may, we are of the view that it would be a hyper technicality now to say that Respondent No.1 herein should be served a fresh show cause notice, more so in view of the directions which we are proceeding to pass in the present judgment. 36. We now come to the plea based on the directions passed by this Court on 7.3.2018 in the earlier appeal. No doubt the findings of the Division Bench of the High Court based on the violation of the principles of natural justice were set aside. But this setting aside will have to be read in the context of the fact that it was felt that Respondent Nos.1 and 2 had an adequate alternative remedy of appeal before the SAT. Not too much can be read into the use of the expression that the appeal had to be decided on merits. The merits of a case include of factual and legal pleas. A plea of lack of opportunity to defend its case is also a legal plea. The order read as a whole only gives rise to the conclusion that the hearing was shifted to the SAT instead of before the High Court, in view of it being the competent body 37. Similarly, the continuation of the interim order passed ealier in those proceedings on 22.3.2012, has to be read in the context of other consequential proceedings having been initiated. The objective was that those proceedings should not be brought to a naught at this stage; but even those were to abide by the result of the appeal before the SAT. We may also note with regret that on the one hand it has been contended by the appellant that so many different proceedings have emanated and, thus, giving a fresh opportunity by issuing a fresh show cause notice having fresh proceedings before the SEBI would serve no effective purpose and yet the summary of those proceedings given to us show hardly any progress. It is not as if those proceedings are anywhere near an advanced stage. 38. The impugned order of the SAT dated 18.10.2019 is predicated on a plea of lack of adequate opportunity and there is no examination on merits. The questions, thus, arises what would be the appropriate directions to be passed since Respondent Nos.1 and 2 have to succeed in view of our aforesaid observations and what will be the nature of relegated proceedings.
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1
### Explanation:
We fail to appreciate why there should have been a cussedness in handing over mere copies of documents when serious allegations and serious consequences which would flow to the respondents herein. Not only that, the endeavour to conclude the proceedings within a span of two weeks thereafter cannot, in our view, be said to be an adequate opportunity as has been found by the SAT. An opportunity of hearing is not a mere nicety but a valuable right. That it does not fall in a straitjacket formula is no doubt the accepted legal position [Dharampal Satyapal Ltd. (supra) ].The question is whether there was substantial compliance of the principles of natural justice [Chairman, Board of Mining Examination (supra) ] and whether there were unnecessary adjournments being sought, which were declined [Titaghur Paper Mills Co. Ltd. and Anr. (supra) and Cement Workers Karamchari Sangh (supra) ]34. We do feel that there was an endeavour to some extent by Respondent No.2 herein to prolong the proceedings but then looking into the enormity of the contents of the show cause notice running into 150 pages with documents spanning 4,000 pages supporting it, a reasonable time had to be given to respond to the same. We may note that the whole enquiry was at the behest of independent enterprising journalist. The manner in which the proceedings were sought to be closed raises serious doubts in our mind that a fair process and opportunity has been extended to Respondent No.2 herein.35. Insofar as Respondent No.1 herein is concerned, not even a formal show cause notice has been issued. However, the fact remains that the communications addressed by Respondent Nos.1 and 2 herein do give rise to a clear and unequivocal view that it was understood as a notice both to Respondent Nos.1 and 2 herein. That is how the parties understood it. There is no doubt about the fact that Respondent No.1 herein made an endeavour to approach the High Court challenging the show cause notice at that time without being joined by Respondent No.2 herein -though it was through Respondent No.2 but that endeavour failed as the proceedings before the FMC had not culminated into any order. It is only in the Letters Patent Appeal filed against that the order of the FMC dated 23.7.2011 was sought to be assailed and Respondent No.2 herein joined the proceedings as a party in his personal capacity. There is, thus, to some extent truth in what has been alleged by the appellants before us, i.e., that Respondent Nos.1 and 2 herein are conveniently playing this game of coming up separately even though they are joined in all purposes. We are conscious of the fact that Respondent No.1 herein is a separate legal entity being a registered company, but the concept of piercing the veil is not unknown to law. By this process, the law either goes behind the corporate personality to the individual members or ignores the separate personality of the company. This course is adopted when it is found that the principle of corporate personality is flagrantly opposed to justice, convenience or the interest of the Revenue. (New Horizons Limited and Another v. Union of India and Others. (1995) 1 SCC 478 ) We are, thus, not able to hold that there was a failure to serve show cause notice to Respondent No.1 herein merely because no such notice was specifically addressed to it. We are conscious of the fact that there was some concession made before the Division Bench of the Gujarat High Court by the counsel for the FMC. Be that as it may, we are of the view that it would be a hyper technicality now to say that Respondent No.1 herein should be served a fresh show cause notice, more so in view of the directions which we are proceeding to pass in the present judgment.36. We now come to the plea based on the directions passed by this Court on 7.3.2018 in the earlier appeal. No doubt the findings of the Division Bench of the High Court based on the violation of the principles of natural justice were set aside. But this setting aside will have to be read in the context of the fact that it was felt that Respondent Nos.1 and 2 had an adequate alternative remedy of appeal before the SAT. Not too much can be read into the use of the expression that the appeal had to be decided on merits. The merits of a case include of factual and legal pleas. A plea of lack of opportunity to defend its case is also a legal plea. The order read as a whole only gives rise to the conclusion that the hearing was shifted to the SAT instead of before the High Court, in view of it being the competent body37. Similarly, the continuation of the interim order passed ealier in those proceedings on 22.3.2012, has to be read in the context of other consequential proceedings having been initiated. The objective was that those proceedings should not be brought to a naught at this stage; but even those were to abide by the result of the appeal before the SAT. We may also note with regret that on the one hand it has been contended by the appellant that so many different proceedings have emanated and, thus, giving a fresh opportunity by issuing a fresh show cause notice having fresh proceedings before the SEBI would serve no effective purpose and yet the summary of those proceedings given to us show hardly any progress. It is not as if those proceedings are anywhere near an advanced stage.38. The impugned order of the SAT dated 18.10.2019 is predicated on a plea of lack of adequate opportunity and there is no examination on merits. The questions, thus, arises what would be the appropriate directions to be passed since Respondent Nos.1 and 2 have to succeed in view of our aforesaid observations and what will be the nature of relegated proceedings.
|
M/s. Siddachalam Exports Private Ltd Vs. Commissioner of Central Excise, Delhi-III | it before the CESTAT. In support of the contention, decision of this Court in M/s Builders Association of India Vs. State of Karnataka & Ors. ((1993) 1 SCC 409 ) was pressed into service. According to the learned counsel, since the retraction was tendered after twenty one months of the submission of original report, it had lost its efficacy and, therefore, had no bearing on the authenticity of the report. 14. It is trite law that the amplitude of an appeal under Section 130E(b) of the Act, in relation to the rate of duty of customs or to the value of goods for the purposes of assessment, is very wide but it is equally well settled that where the CESTAT, a fact finding authority, has arrived at a finding by taking into consideration all material and relevant facts and has applied correct legal principles, this Court would be loathe to interfere with such a finding even when another view might be possible on same set of facts. Nevertheless, if it is shown that the conclusion under challenge is such as could not possibly have been arrived at by a person duly instructed upon the material before him i.e. the conclusion is perverse or that the CESTAT has failed to apply correct principles of law, this Court is competent to substitute its own opinion for that of the CESTAT. 15. Having bestowed our anxious consideration to the facts at hand, we are constrained to observe that the decisions of both the authorities below are unsustainable. In our opinion, neither the Commissioner nor the CESTAT has examined the issue before them in its correct perspective and as per the procedure contemplated in law for determination of the value of the goods for exportation. 16. It is settled that the procedure prescribed under Section 14(1) of the Act and particularized in Rule 4 of the 1988 Rules has to be adopted to determine the value of goods entered for exports, irrespective of the fact whether any duty is leviable or not. It is also trite that ordinarily, the price received by the exporter in the ordinary course of business shall be taken to be the transaction value for determination of value of goods under export, in absence of any special circumstances indicated under Section 14(1) of the Act and Rule 4(2) of the 1988 Rules. The initial burden to establish that the value mentioned by the exporter in the bill of export or the shipping bill, as the case may be, is incorrect lies on the Revenue. Therefore, once the transaction value under Rule 4 is rejected, the value must be determined by sequentially proceeding through Rules 5 to 8 of the 1988 Rules. (See: Commissioner of Customs (Gen), Mumbai Vs. Abdulla Koyloth (JT 2010 (12) SC 267 ).) 17. In Om Prakash Bhatia Vs. Commissioner of Customs, Delhi ((2003) 6 SCC 161 ), while dealing with a similar case of fraudulent drawback claim by deliberately over-invoicing ready-made garments, this Court rejected the plea of the exporter that Section 113(d) of the Act was not applicable to the facts of that case as the goods were not prohibited goods; (ii) the exporter was required to declare the value of the goods expected to be received from the overseas purchaser and not the market value of such goods in India and (iii) since in that case, no duty was payable on the export, Section 14 of the Act could not be applied to determine the value of the goods. It was, inter-alia, held that the definition of "prohibited goods" in Section 2(33) of the Act indicates that if the conditions prescribed for import or export of the goods are not complied with, it would be considered to be "prohibited goods". It was held that for determining the export value of the goods, it is necessary to refer to the meaning of the word "value" as defined in Section 2(41) of the Act and the same must be determined in accordance with the provisions of sub-section (1) of Section 14 of the Act. The Court observed thus: "...For determining the export value of the goods, we have to refer to the meaning of the word "value" given in Section 2(41) of the Act, which specifically provides that value in relation to any goods means the value thereof determined in accordance with the provisions of sub-section (1) of Section 14. ..... ..... ..... Section 14 specifically provides that in case of assessing the value for the purpose of export, value is to be determined at the price at which such or like goods are ordinarily sold or offered for sale at the place of exportation in the course of international trade, where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for sale. No doubt, Section 14 would be applicable for determining the value of the goods for the purpose of tariff or duty of customs chargeable on the goods. In addition, by reference it is to be resorted to and applied for determining the export value of the goods as provided under sub-section (41) of Section 2. This is independent of any question of assessability of the goods sought to be exported to duty. Hence, for finding out whether the export value is truly stated in the shipping bill, even if no duty is leviable, it can be referred to for determining the true export value of the goods sought to be exported." 18. The opinion expressed in Om Prakash Bhatia (supra) has been reiterated by this Court in Bibhishan Vs. State of Maharashtra ((2007) 12 SCC 390 ). It has been held that the definition of "prohibited goods" in the Act is a broad one and the said provision not only brings within its sweep an import or export of goods which is subject to any prohibition under the Act, but also any of the law for the time being in force. | 0[ds]16. It is settled that the procedure prescribed under Section 14(1) of the Act and particularized in Rule 4 of the 1988 Rules has to be adopted to determine the value of goods entered for exports, irrespective of the fact whether any duty is leviable or not. It is also trite that ordinarily, the price received by the exporter in the ordinary course of business shall be taken to be the transaction value for determination of value of goods under export, in absence of any special circumstances indicated under Section 14(1) of the Act and Rule 4(2) of the 1988 Rules. The initial burden to establish that the value mentioned by the exporter in the bill of export or the shipping bill, as the case may be, is incorrect lies on the Revenue. Therefore, once the transaction value under Rule 4 is rejected, the value must be determined by sequentially proceeding through Rules 5 to 8 of the 1988 Rules. (See: Commissioner of Customs (Gen), Mumbai Vs. Abdulla Koyloth (JT 2010 (12) SC 267 ).In Om Prakash Bhatia Vs. Commissioner of Customs, Delhi ((2003) 6 SCC 161 ), while dealing with a similar case of fraudulent drawback claim by deliberately over-invoicing ready-made garments, this Court rejected the plea of the exporter that Section 113(d) of the Act was not applicable to the facts of that case as the goods were not prohibited goods; (ii) the exporter was required to declare the value of the goods expected to be received from the overseas purchaser and not the market value of such goods in India and (iii) since in that case, no duty was payable on the export, Section 14 of the Act could not be applied to determine the value of the goods. It was, inter-alia, held that the definition of "prohibited goods" in Section 2(33) of the Act indicates that if the conditions prescribed for import or export of the goods are not complied with, it would be considered to be "prohibited goods". It was held that for determining the export value of the goods, it is necessary to refer to the meaning of the word "value" as defined in Section 2(41) of the Act and the same must be determined in accordance with the provisions of sub-section (1) of Section 14 of the Act. The Court observeddetermining the export value of the goods, we have to refer to the meaning of the word "value" given in Section 2(41) of the Act, which specifically provides that value in relation to any goods means the value thereof determined in accordance with the provisions of sub-section (1) of Section 14. ..... ..... ..... Section 14 specifically provides that in case of assessing the value for the purpose of export, value is to be determined at the price at which such or like goods are ordinarily sold or offered for sale at the place of exportation in the course of international trade, where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for sale. No doubt, Section 14 would be applicable for determining the value of the goods for the purpose of tariff or duty of customs chargeable on the goods. In addition, by reference it is to be resorted to and applied for determining the export value of the goods as provided under sub-section (41) of Section 2. This is independent of any question of assessability of the goods sought to be exported to duty. Hence, for finding out whether the export value is truly stated in the shipping bill, even if no duty is leviable, it can be referred to for determining the true export value of the goods sought to be exported.The opinion expressed in Om Prakash Bhatia (supra) has been reiterated by this Court in Bibhishan Vs. State of Maharashtra ((2007) 12 SCC 390 ). It has been held that the definition of "prohibited goods" in the Act is a broad one and the said provision not only brings within its sweep an import or export of goods which is subject to any prohibition under the Act, but also any of the law for the time being in force. | 0 | 3,366 | 806 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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it before the CESTAT. In support of the contention, decision of this Court in M/s Builders Association of India Vs. State of Karnataka & Ors. ((1993) 1 SCC 409 ) was pressed into service. According to the learned counsel, since the retraction was tendered after twenty one months of the submission of original report, it had lost its efficacy and, therefore, had no bearing on the authenticity of the report. 14. It is trite law that the amplitude of an appeal under Section 130E(b) of the Act, in relation to the rate of duty of customs or to the value of goods for the purposes of assessment, is very wide but it is equally well settled that where the CESTAT, a fact finding authority, has arrived at a finding by taking into consideration all material and relevant facts and has applied correct legal principles, this Court would be loathe to interfere with such a finding even when another view might be possible on same set of facts. Nevertheless, if it is shown that the conclusion under challenge is such as could not possibly have been arrived at by a person duly instructed upon the material before him i.e. the conclusion is perverse or that the CESTAT has failed to apply correct principles of law, this Court is competent to substitute its own opinion for that of the CESTAT. 15. Having bestowed our anxious consideration to the facts at hand, we are constrained to observe that the decisions of both the authorities below are unsustainable. In our opinion, neither the Commissioner nor the CESTAT has examined the issue before them in its correct perspective and as per the procedure contemplated in law for determination of the value of the goods for exportation. 16. It is settled that the procedure prescribed under Section 14(1) of the Act and particularized in Rule 4 of the 1988 Rules has to be adopted to determine the value of goods entered for exports, irrespective of the fact whether any duty is leviable or not. It is also trite that ordinarily, the price received by the exporter in the ordinary course of business shall be taken to be the transaction value for determination of value of goods under export, in absence of any special circumstances indicated under Section 14(1) of the Act and Rule 4(2) of the 1988 Rules. The initial burden to establish that the value mentioned by the exporter in the bill of export or the shipping bill, as the case may be, is incorrect lies on the Revenue. Therefore, once the transaction value under Rule 4 is rejected, the value must be determined by sequentially proceeding through Rules 5 to 8 of the 1988 Rules. (See: Commissioner of Customs (Gen), Mumbai Vs. Abdulla Koyloth (JT 2010 (12) SC 267 ).) 17. In Om Prakash Bhatia Vs. Commissioner of Customs, Delhi ((2003) 6 SCC 161 ), while dealing with a similar case of fraudulent drawback claim by deliberately over-invoicing ready-made garments, this Court rejected the plea of the exporter that Section 113(d) of the Act was not applicable to the facts of that case as the goods were not prohibited goods; (ii) the exporter was required to declare the value of the goods expected to be received from the overseas purchaser and not the market value of such goods in India and (iii) since in that case, no duty was payable on the export, Section 14 of the Act could not be applied to determine the value of the goods. It was, inter-alia, held that the definition of "prohibited goods" in Section 2(33) of the Act indicates that if the conditions prescribed for import or export of the goods are not complied with, it would be considered to be "prohibited goods". It was held that for determining the export value of the goods, it is necessary to refer to the meaning of the word "value" as defined in Section 2(41) of the Act and the same must be determined in accordance with the provisions of sub-section (1) of Section 14 of the Act. The Court observed thus: "...For determining the export value of the goods, we have to refer to the meaning of the word "value" given in Section 2(41) of the Act, which specifically provides that value in relation to any goods means the value thereof determined in accordance with the provisions of sub-section (1) of Section 14. ..... ..... ..... Section 14 specifically provides that in case of assessing the value for the purpose of export, value is to be determined at the price at which such or like goods are ordinarily sold or offered for sale at the place of exportation in the course of international trade, where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for sale. No doubt, Section 14 would be applicable for determining the value of the goods for the purpose of tariff or duty of customs chargeable on the goods. In addition, by reference it is to be resorted to and applied for determining the export value of the goods as provided under sub-section (41) of Section 2. This is independent of any question of assessability of the goods sought to be exported to duty. Hence, for finding out whether the export value is truly stated in the shipping bill, even if no duty is leviable, it can be referred to for determining the true export value of the goods sought to be exported." 18. The opinion expressed in Om Prakash Bhatia (supra) has been reiterated by this Court in Bibhishan Vs. State of Maharashtra ((2007) 12 SCC 390 ). It has been held that the definition of "prohibited goods" in the Act is a broad one and the said provision not only brings within its sweep an import or export of goods which is subject to any prohibition under the Act, but also any of the law for the time being in force.
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16. It is settled that the procedure prescribed under Section 14(1) of the Act and particularized in Rule 4 of the 1988 Rules has to be adopted to determine the value of goods entered for exports, irrespective of the fact whether any duty is leviable or not. It is also trite that ordinarily, the price received by the exporter in the ordinary course of business shall be taken to be the transaction value for determination of value of goods under export, in absence of any special circumstances indicated under Section 14(1) of the Act and Rule 4(2) of the 1988 Rules. The initial burden to establish that the value mentioned by the exporter in the bill of export or the shipping bill, as the case may be, is incorrect lies on the Revenue. Therefore, once the transaction value under Rule 4 is rejected, the value must be determined by sequentially proceeding through Rules 5 to 8 of the 1988 Rules. (See: Commissioner of Customs (Gen), Mumbai Vs. Abdulla Koyloth (JT 2010 (12) SC 267 ).In Om Prakash Bhatia Vs. Commissioner of Customs, Delhi ((2003) 6 SCC 161 ), while dealing with a similar case of fraudulent drawback claim by deliberately over-invoicing ready-made garments, this Court rejected the plea of the exporter that Section 113(d) of the Act was not applicable to the facts of that case as the goods were not prohibited goods; (ii) the exporter was required to declare the value of the goods expected to be received from the overseas purchaser and not the market value of such goods in India and (iii) since in that case, no duty was payable on the export, Section 14 of the Act could not be applied to determine the value of the goods. It was, inter-alia, held that the definition of "prohibited goods" in Section 2(33) of the Act indicates that if the conditions prescribed for import or export of the goods are not complied with, it would be considered to be "prohibited goods". It was held that for determining the export value of the goods, it is necessary to refer to the meaning of the word "value" as defined in Section 2(41) of the Act and the same must be determined in accordance with the provisions of sub-section (1) of Section 14 of the Act. The Court observeddetermining the export value of the goods, we have to refer to the meaning of the word "value" given in Section 2(41) of the Act, which specifically provides that value in relation to any goods means the value thereof determined in accordance with the provisions of sub-section (1) of Section 14. ..... ..... ..... Section 14 specifically provides that in case of assessing the value for the purpose of export, value is to be determined at the price at which such or like goods are ordinarily sold or offered for sale at the place of exportation in the course of international trade, where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for sale. No doubt, Section 14 would be applicable for determining the value of the goods for the purpose of tariff or duty of customs chargeable on the goods. In addition, by reference it is to be resorted to and applied for determining the export value of the goods as provided under sub-section (41) of Section 2. This is independent of any question of assessability of the goods sought to be exported to duty. Hence, for finding out whether the export value is truly stated in the shipping bill, even if no duty is leviable, it can be referred to for determining the true export value of the goods sought to be exported.The opinion expressed in Om Prakash Bhatia (supra) has been reiterated by this Court in Bibhishan Vs. State of Maharashtra ((2007) 12 SCC 390 ). It has been held that the definition of "prohibited goods" in the Act is a broad one and the said provision not only brings within its sweep an import or export of goods which is subject to any prohibition under the Act, but also any of the law for the time being in force.
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Rajendra Jha Vs. Presiding Officer, Labour Court, Bokaro Steel City, District | the proceedings. And, it is thereafter that the appellant filed an application in the Labour Court contending that the employers should not be allowed to lead evidence.7. Thus, the order passed by the Labour Court allowing the employers to lead evidence has been accepted and acted upon by the appellant. He has already given a list of his own witnesses and has cross-examined the witnesses whose evidence was led by the employers. It would be wrong, at this stage, to undo what has been done in pursuance of the order of the Labour Court. Besides, the challenge made by the appellant to the order of the Labour Court has failed and the order of the Patna High Court dismissing the appellant s writ petition has become final.In order to get over these difficulties, it is urged by the appellant that there can be no estoppel against law and therefore, it is open to him to argue even at this stage that the Labour Court ought not to have passed the particular order. In support of this contention reliance is placed by the appellant on two judgments of this Court.8. In Chitturi Subbanna v. Kudapapa Subbanna, it was held by the majority that pure questions of law, not dependent on the determination of any questions of fact, should be allowed to be raised for the first time even at later stages of a litigation.9. In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, this Court held that the question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If, by an erroneous decision, the Court assumes jurisdiction which it does not possess its decision cannot operate as res judicata between the parties. In this regard, the Court made a distinction between the decision of a question of fact and the decision of a question as regard the jurisdiction of the Court. In so far as question of fact are concerned, the Court is not concerned with the correctness or otherwise of the earlier judgment while determining the application of the rule of res judicata. Where, however, the question is purely of law and relates to the jurisdiction of the Court or where the decision of the Court sanctions something which is illegal, the party affected by that decision will not be precluded by the rule of res judicata from challenging the validity of the earlier decision. The reason is, that the rule of procedure cannot supersede the law of the land.10. We do not consider that either of these decisions can help the appellant. A question of law which does not require fresh investigation into facts may be allowed to be raised at a later stage of a proceeding but, that is subject to the qualification that the question is not concluded by a decision between the same parties. In this case, the question as to whether the Labour Court was right in giving an opportunity to the employers to lead evidence, is not being raised by the appellant for the first time in this Court. It was raised by him in the writ petition which he had filed in the Patna High Court and that writ petition was dismissed. In so far as the question of res judicata is concerned, if an erroneous decision on a question of law is rendered by a Court by assuming jurisdiction which it does not possess, it may be possible to argue that the decision cannot operate as res judicata even between the same parties. But, in the case before us, the Labour Court had the jurisdiction to decide whether to allow the employers to lead evidence or not. It may have acted irregularly in the exercise of that jurisdiction but that is to be distinguished from cases in which the Court inherently lacks the jurisdiction to entertain a proceeding or to pass a particular order. Besides, as we have stated earlier, though it would be true to say that the employers did not ask for an opportunity to lead evidence simultaneously with the filing of the application under section 33(2) (b) of the Act, it is not possible to hold on the basis of the data placed before us that they asked for such an opportunity after the proceedings had terminated. What seems to have happened is that the application filed by the employers under section 33 (2) (b) of the Act was taken up for consideration first. When the hearing of that application was nearing completion, but before the final orders were passed therein, the employers asked for an opportunity to lead evidence to justify the order of dismissal. The Labour Court disposed of both the matters together by a common judgment which is dated November 16, 1976. It held by one and the same order that the departmental inquiry was vitiated but that the employers should be allowed to lead evidence to justify the order of dismissal. The appellants contention that the employers did not ask for an opportunity to lead evidence at all and that the Labour Court acted gratuitously is not possible to accept. Thus, in passing the order allowing the employers to lead evidence, the Labour Court cannot be said to have acted without jurisdiction.For these reasons, we dismiss this appeal and hold that the employers may lead evidence to justify the order whereby the appellant was dismissed from service on March 1, 1975. There will be no order as to costs.11. A longtime has gone by since the appellant was dismissed. Nine years is frightful delay. A large part of that period was wasted in dealing with several obstacles raised by the appellant himself in the disposal of the matter, including the allegations which he made against the Presiding Officer of the Labour Court. Twice , he obtained orders staying further proceedings in the Labour Court: once from the High Court in Writ Petition No. 336 of 1976 and then in this appeal. A | 0[ds]10. We do not consider that either of these decisions can help the appellant. A question of law which does not require fresh investigation into facts may be allowed to be raised at a later stage of a proceeding but, that is subject to the qualification that the question is not concluded by a decision between the same parties.In this case, the question as to whether the Labour Court was right in giving an opportunity to the employers to lead evidence, is not being raised by the appellant for the first time in this Court.It was raised by him in the writ petition which he had filed in the Patna High Court and that writ petition was dismissed. In so far as the question of res judicata is concerned, if an erroneous decision on a question of law is rendered by a Court by assuming jurisdiction which it does not possess, it may be possible to argue that the decision cannot operate as res judicata even between the same parties. But, in the case before us, the Labour Court had the jurisdiction to decide whether to allow the employers to lead evidence or not. It may have acted irregularly in the exercise of that jurisdiction but that is to be distinguished from cases in which the Court inherently lacks the jurisdiction to entertain a proceeding or to pass a particular order. Besides, as we have stated earlier, though it would be true to say that the employers did not ask for an opportunity to lead evidence simultaneously with the filing of the application under section 33(2) (b) of the Act, it is not possible to hold on the basis of the data placed before us that they asked for such an opportunity after the proceedings had terminated. What seems to have happened is that the application filed by the employers under section 33 (2) (b) of the Act was taken up for consideration first. When the hearing of that application was nearing completion, but before the final orders were passed therein, the employers asked for an opportunity to lead evidence to justify the order of dismissal. The Labour Court disposed of both the matters together by a common judgment which is dated November 16, 1976. It held by one and the same order that the departmental inquiry was vitiated but that the employers should be allowed to lead evidence to justify the order of dismissal. The appellants contention that the employers did not ask for an opportunity to lead evidence at all and that the Labour Court acted gratuitously is not possible to accept. Thus, in passing the order allowing the employers to lead evidence, the Labour Court cannot be said to have acted without jurisdiction.For these reasons, we dismiss this appeal and hold that the employers may lead evidence to justify the order whereby the appellant was dismissed from service on March 1, 1975. There will be no order as to costs.11. A longtime has gone by since the appellant was dismissed. Nine years is frightful delay. A large part of that period was wasted in dealing with several obstacles raised by the appellant himself in the disposal of the matter, including the allegations which he made against the Presiding Officer of the Labour Court. Twice , he obtained orders staying further proceedings in the Labour Court: once from the High Court in Writ Petition No. 336 of 1976 and then in this | 0 | 3,299 | 626 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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the proceedings. And, it is thereafter that the appellant filed an application in the Labour Court contending that the employers should not be allowed to lead evidence.7. Thus, the order passed by the Labour Court allowing the employers to lead evidence has been accepted and acted upon by the appellant. He has already given a list of his own witnesses and has cross-examined the witnesses whose evidence was led by the employers. It would be wrong, at this stage, to undo what has been done in pursuance of the order of the Labour Court. Besides, the challenge made by the appellant to the order of the Labour Court has failed and the order of the Patna High Court dismissing the appellant s writ petition has become final.In order to get over these difficulties, it is urged by the appellant that there can be no estoppel against law and therefore, it is open to him to argue even at this stage that the Labour Court ought not to have passed the particular order. In support of this contention reliance is placed by the appellant on two judgments of this Court.8. In Chitturi Subbanna v. Kudapapa Subbanna, it was held by the majority that pure questions of law, not dependent on the determination of any questions of fact, should be allowed to be raised for the first time even at later stages of a litigation.9. In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, this Court held that the question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If, by an erroneous decision, the Court assumes jurisdiction which it does not possess its decision cannot operate as res judicata between the parties. In this regard, the Court made a distinction between the decision of a question of fact and the decision of a question as regard the jurisdiction of the Court. In so far as question of fact are concerned, the Court is not concerned with the correctness or otherwise of the earlier judgment while determining the application of the rule of res judicata. Where, however, the question is purely of law and relates to the jurisdiction of the Court or where the decision of the Court sanctions something which is illegal, the party affected by that decision will not be precluded by the rule of res judicata from challenging the validity of the earlier decision. The reason is, that the rule of procedure cannot supersede the law of the land.10. We do not consider that either of these decisions can help the appellant. A question of law which does not require fresh investigation into facts may be allowed to be raised at a later stage of a proceeding but, that is subject to the qualification that the question is not concluded by a decision between the same parties. In this case, the question as to whether the Labour Court was right in giving an opportunity to the employers to lead evidence, is not being raised by the appellant for the first time in this Court. It was raised by him in the writ petition which he had filed in the Patna High Court and that writ petition was dismissed. In so far as the question of res judicata is concerned, if an erroneous decision on a question of law is rendered by a Court by assuming jurisdiction which it does not possess, it may be possible to argue that the decision cannot operate as res judicata even between the same parties. But, in the case before us, the Labour Court had the jurisdiction to decide whether to allow the employers to lead evidence or not. It may have acted irregularly in the exercise of that jurisdiction but that is to be distinguished from cases in which the Court inherently lacks the jurisdiction to entertain a proceeding or to pass a particular order. Besides, as we have stated earlier, though it would be true to say that the employers did not ask for an opportunity to lead evidence simultaneously with the filing of the application under section 33(2) (b) of the Act, it is not possible to hold on the basis of the data placed before us that they asked for such an opportunity after the proceedings had terminated. What seems to have happened is that the application filed by the employers under section 33 (2) (b) of the Act was taken up for consideration first. When the hearing of that application was nearing completion, but before the final orders were passed therein, the employers asked for an opportunity to lead evidence to justify the order of dismissal. The Labour Court disposed of both the matters together by a common judgment which is dated November 16, 1976. It held by one and the same order that the departmental inquiry was vitiated but that the employers should be allowed to lead evidence to justify the order of dismissal. The appellants contention that the employers did not ask for an opportunity to lead evidence at all and that the Labour Court acted gratuitously is not possible to accept. Thus, in passing the order allowing the employers to lead evidence, the Labour Court cannot be said to have acted without jurisdiction.For these reasons, we dismiss this appeal and hold that the employers may lead evidence to justify the order whereby the appellant was dismissed from service on March 1, 1975. There will be no order as to costs.11. A longtime has gone by since the appellant was dismissed. Nine years is frightful delay. A large part of that period was wasted in dealing with several obstacles raised by the appellant himself in the disposal of the matter, including the allegations which he made against the Presiding Officer of the Labour Court. Twice , he obtained orders staying further proceedings in the Labour Court: once from the High Court in Writ Petition No. 336 of 1976 and then in this appeal. A
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10. We do not consider that either of these decisions can help the appellant. A question of law which does not require fresh investigation into facts may be allowed to be raised at a later stage of a proceeding but, that is subject to the qualification that the question is not concluded by a decision between the same parties.In this case, the question as to whether the Labour Court was right in giving an opportunity to the employers to lead evidence, is not being raised by the appellant for the first time in this Court.It was raised by him in the writ petition which he had filed in the Patna High Court and that writ petition was dismissed. In so far as the question of res judicata is concerned, if an erroneous decision on a question of law is rendered by a Court by assuming jurisdiction which it does not possess, it may be possible to argue that the decision cannot operate as res judicata even between the same parties. But, in the case before us, the Labour Court had the jurisdiction to decide whether to allow the employers to lead evidence or not. It may have acted irregularly in the exercise of that jurisdiction but that is to be distinguished from cases in which the Court inherently lacks the jurisdiction to entertain a proceeding or to pass a particular order. Besides, as we have stated earlier, though it would be true to say that the employers did not ask for an opportunity to lead evidence simultaneously with the filing of the application under section 33(2) (b) of the Act, it is not possible to hold on the basis of the data placed before us that they asked for such an opportunity after the proceedings had terminated. What seems to have happened is that the application filed by the employers under section 33 (2) (b) of the Act was taken up for consideration first. When the hearing of that application was nearing completion, but before the final orders were passed therein, the employers asked for an opportunity to lead evidence to justify the order of dismissal. The Labour Court disposed of both the matters together by a common judgment which is dated November 16, 1976. It held by one and the same order that the departmental inquiry was vitiated but that the employers should be allowed to lead evidence to justify the order of dismissal. The appellants contention that the employers did not ask for an opportunity to lead evidence at all and that the Labour Court acted gratuitously is not possible to accept. Thus, in passing the order allowing the employers to lead evidence, the Labour Court cannot be said to have acted without jurisdiction.For these reasons, we dismiss this appeal and hold that the employers may lead evidence to justify the order whereby the appellant was dismissed from service on March 1, 1975. There will be no order as to costs.11. A longtime has gone by since the appellant was dismissed. Nine years is frightful delay. A large part of that period was wasted in dealing with several obstacles raised by the appellant himself in the disposal of the matter, including the allegations which he made against the Presiding Officer of the Labour Court. Twice , he obtained orders staying further proceedings in the Labour Court: once from the High Court in Writ Petition No. 336 of 1976 and then in this
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Management Of Tournamulla Estate Vs. Workmen | scheme, which is called "Terms of Agreement", provides that if a dispute arises regarding a claim for payment of gratuity of a workman who has been dismissed for misconduct, such a dispute shall be referred to the labour court having jurisdiction, for decision. As a dispute arose with regard to the payment of gratuity, the matter was referred to the Labour Court. Before that court, in the statement of case submitted by the Secretary of the Malabar Estate Workers Union, it was stated in cl. (c) as follows:"The worker was not paid gratuity on dismissal, in spite of making a request for the same. There is a gratuity scheme applicable to this estate and as per the terms of the scheme if a dispute arises regarding the payment of gratuity to a dismissed workman, the same is left open to be decided by this Court. The allegations of misconduct levelled against the worker in this case cannot be considered to be one which by its nature disentitles the worker to claim gratuity. Even if the allegation is true the same does not involve any question of moral turpitude or cause any financial loss to the company. Any allegations of misconduct do not impose (sic) disentitle the workmen for gratuity. Hence in this particular case it is submitted that the worker is entitled for gratuity as claimed. The worker has put in 18 years of service and as such he is entitled to get at the rate of 15 days wages based on last drawn wage rate for every completed years of service." In reply, which was filed by the management, the facts which have been set out above and the circumstances in which the dismissal was directed, were fully given. Before the Labour Court, there seems to have been no dispute whatsoever that the dismissal of the respondent workman was on account of misconduct consisting of behaving in a riotous and disorderly manner and having assaulted a tea maker (supervisor). The Labour court, however, referred to the judgment of this Court in State of Punjab v. Suraj Parkash Kapur, (1962) 2 SCR 711 = (AIR 1963 SC 507 ) in which the general argument was not accepted that in all cases where services of an employee are terminated for misconduct, gratuity should not be paid to him. However, this Court has had occasion to consider in detail the various circumstances in which gratuity would be liable to forfeiture for misconduct of a particular nature. It was laid down in Delhi Cloth and General Mills Co., Ltd. v. Workmen, (1969) 2 SCR 307 = (AIR 1970 SC 919 ) that the object of having a gratuity scheme is to provide a retiring benefit to workmen who have rendered long and unblemished service to the employer and thereby contributed to the prosperity of the employer, and it is, therefore, not correct to say that no misconduct however grave, may not be visited with forfeiture of gratuity. Misconduct could be of three kinds, (1) technical misconduct which leaves no trail of indiscipline, (2) misconduct resulting in damage to the employers property which might be compensated by forfeiture of gratuity or part thereof, and (3) serious misconduct such as acts of violence against the management or other employees or riotous or disorderly behaviour in or near the place of employment, which, though not directly causing damage, is conducive to grave indiscipline. The first should involve no forfeiture, the second may involve forfeiture of the amount equal to the loss directly suffered by the employer in consequence of the misconduct and the third will entail forfeiture of gratuity due to the workman. In other words, according to this decision, if a workman is guilty of a serious misconduct of the third category, then, his gratuity can be forfeited in its entirety."3. In yet another case in Remington Rand of India Ltd. v. The Workmen, (1970) 2 SCR 935 = (AIR 1970 SC 1421 ) one of the questions was whether a provision can be made in a gratuity scheme that if the misconduct is a gross one involving violence, riotous behaviour, etc., the qualifying period should be limited to fifteen years of continuous service. The earlier decision in Delhi Cloth and General Mills Ltd., (1969) 2 SCR 307 = (AIR 1970 SC 919 ) was discussed and reference was made to it. The Court expressed agreement with the decision in the earlier case that matters which had impact on the discipline and the working of the concern, require a different treatment in the matter of forfeiture of gratuity. It is significant that in S. 4 (6) (b) of the Payment of Gratuity Act, it has been provided as follows :"the gratuity payable to an employee shall be wholly forfeited-(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part,......".Although the provisions of this statute would not govern the decision of the present case, the importance of the enactment lies in the fact that the principle which was laid down in the Delhi Cloth Mills case with regard to forfeiture of gratuity in the event of commission of gross misconduct of the nature mentioned above, has been incorporated in the statute itself. Even otherwise, such a rule is conducive to industrial harmony and is in consonance with public policy.4. Learned counsel for the respondents has not been able to show how the rule laid down in the Delhi Cloth Mills case would not be applicable if the concerned workman was guilty of the kind of misconduct mentioned above. His sole contention has been that the Labour court did not apply its mind to the nature and degree of the misconduct committed, and, therefore, the matter should be remitted to that court for a decision in accordance with law. In our opinion, it is not necessary to send the matter to the labour court, because the facts were not in dispute before it. | 1[ds]Misconduct could be of three kinds, (1) technical misconduct which leaves no trail of indiscipline, (2) misconduct resulting in damage to the employers property which might be compensated by forfeiture of gratuity or part thereof, and (3) serious misconduct such as acts of violence against the management or other employees or riotous or disorderly behaviour in or near the place of employment, which, though not directly causing damage, is conducive to grave indiscipline. The first should involve no forfeiture, the second may involve forfeiture of the amount equal to the loss directly suffered by the employer in consequence of the misconduct and the third will entail forfeiture of gratuity due to thethe provisions of this statute would not govern the decision of the present case, the importance of the enactment lies in the fact that the principle which was laid down in the Delhi Cloth Mills case with regard to forfeiture of gratuity in the event of commission of gross misconduct of the nature mentioned above, has been incorporated in the statute itself. Even otherwise, such a rule is conducive to industrial harmony and is in consonance with public policy.4. Learned counsel for the respondents has not been able to show how the rule laid down in the Delhi Cloth Mills case would not be applicable if the concerned workman was guilty of the kind of misconduct mentionedour opinion, it is not necessary to send the matter to the labour court, because the facts were not in dispute before it. | 1 | 1,246 | 276 | ### 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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scheme, which is called "Terms of Agreement", provides that if a dispute arises regarding a claim for payment of gratuity of a workman who has been dismissed for misconduct, such a dispute shall be referred to the labour court having jurisdiction, for decision. As a dispute arose with regard to the payment of gratuity, the matter was referred to the Labour Court. Before that court, in the statement of case submitted by the Secretary of the Malabar Estate Workers Union, it was stated in cl. (c) as follows:"The worker was not paid gratuity on dismissal, in spite of making a request for the same. There is a gratuity scheme applicable to this estate and as per the terms of the scheme if a dispute arises regarding the payment of gratuity to a dismissed workman, the same is left open to be decided by this Court. The allegations of misconduct levelled against the worker in this case cannot be considered to be one which by its nature disentitles the worker to claim gratuity. Even if the allegation is true the same does not involve any question of moral turpitude or cause any financial loss to the company. Any allegations of misconduct do not impose (sic) disentitle the workmen for gratuity. Hence in this particular case it is submitted that the worker is entitled for gratuity as claimed. The worker has put in 18 years of service and as such he is entitled to get at the rate of 15 days wages based on last drawn wage rate for every completed years of service." In reply, which was filed by the management, the facts which have been set out above and the circumstances in which the dismissal was directed, were fully given. Before the Labour Court, there seems to have been no dispute whatsoever that the dismissal of the respondent workman was on account of misconduct consisting of behaving in a riotous and disorderly manner and having assaulted a tea maker (supervisor). The Labour court, however, referred to the judgment of this Court in State of Punjab v. Suraj Parkash Kapur, (1962) 2 SCR 711 = (AIR 1963 SC 507 ) in which the general argument was not accepted that in all cases where services of an employee are terminated for misconduct, gratuity should not be paid to him. However, this Court has had occasion to consider in detail the various circumstances in which gratuity would be liable to forfeiture for misconduct of a particular nature. It was laid down in Delhi Cloth and General Mills Co., Ltd. v. Workmen, (1969) 2 SCR 307 = (AIR 1970 SC 919 ) that the object of having a gratuity scheme is to provide a retiring benefit to workmen who have rendered long and unblemished service to the employer and thereby contributed to the prosperity of the employer, and it is, therefore, not correct to say that no misconduct however grave, may not be visited with forfeiture of gratuity. Misconduct could be of three kinds, (1) technical misconduct which leaves no trail of indiscipline, (2) misconduct resulting in damage to the employers property which might be compensated by forfeiture of gratuity or part thereof, and (3) serious misconduct such as acts of violence against the management or other employees or riotous or disorderly behaviour in or near the place of employment, which, though not directly causing damage, is conducive to grave indiscipline. The first should involve no forfeiture, the second may involve forfeiture of the amount equal to the loss directly suffered by the employer in consequence of the misconduct and the third will entail forfeiture of gratuity due to the workman. In other words, according to this decision, if a workman is guilty of a serious misconduct of the third category, then, his gratuity can be forfeited in its entirety."3. In yet another case in Remington Rand of India Ltd. v. The Workmen, (1970) 2 SCR 935 = (AIR 1970 SC 1421 ) one of the questions was whether a provision can be made in a gratuity scheme that if the misconduct is a gross one involving violence, riotous behaviour, etc., the qualifying period should be limited to fifteen years of continuous service. The earlier decision in Delhi Cloth and General Mills Ltd., (1969) 2 SCR 307 = (AIR 1970 SC 919 ) was discussed and reference was made to it. The Court expressed agreement with the decision in the earlier case that matters which had impact on the discipline and the working of the concern, require a different treatment in the matter of forfeiture of gratuity. It is significant that in S. 4 (6) (b) of the Payment of Gratuity Act, it has been provided as follows :"the gratuity payable to an employee shall be wholly forfeited-(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part,......".Although the provisions of this statute would not govern the decision of the present case, the importance of the enactment lies in the fact that the principle which was laid down in the Delhi Cloth Mills case with regard to forfeiture of gratuity in the event of commission of gross misconduct of the nature mentioned above, has been incorporated in the statute itself. Even otherwise, such a rule is conducive to industrial harmony and is in consonance with public policy.4. Learned counsel for the respondents has not been able to show how the rule laid down in the Delhi Cloth Mills case would not be applicable if the concerned workman was guilty of the kind of misconduct mentioned above. His sole contention has been that the Labour court did not apply its mind to the nature and degree of the misconduct committed, and, therefore, the matter should be remitted to that court for a decision in accordance with law. In our opinion, it is not necessary to send the matter to the labour court, because the facts were not in dispute before it.
### Response:
1
### Explanation:
Misconduct could be of three kinds, (1) technical misconduct which leaves no trail of indiscipline, (2) misconduct resulting in damage to the employers property which might be compensated by forfeiture of gratuity or part thereof, and (3) serious misconduct such as acts of violence against the management or other employees or riotous or disorderly behaviour in or near the place of employment, which, though not directly causing damage, is conducive to grave indiscipline. The first should involve no forfeiture, the second may involve forfeiture of the amount equal to the loss directly suffered by the employer in consequence of the misconduct and the third will entail forfeiture of gratuity due to thethe provisions of this statute would not govern the decision of the present case, the importance of the enactment lies in the fact that the principle which was laid down in the Delhi Cloth Mills case with regard to forfeiture of gratuity in the event of commission of gross misconduct of the nature mentioned above, has been incorporated in the statute itself. Even otherwise, such a rule is conducive to industrial harmony and is in consonance with public policy.4. Learned counsel for the respondents has not been able to show how the rule laid down in the Delhi Cloth Mills case would not be applicable if the concerned workman was guilty of the kind of misconduct mentionedour opinion, it is not necessary to send the matter to the labour court, because the facts were not in dispute before it.
|
POPATRAO VYANKATRAO PATIL Vs. THE STATE OF MAHARASHTRA & ORS | reiterated by the Tehsildar, Karad – respondent No.4 in his report submitted to the Collector - respondent No.2 dated 9.8.2012. The Sub-Divisional Officer, Karad – respondent No.3 in his report dated 4.9.2012, addressed to the Collector, Satara also confirmed the said position. A perusal of the letter dated 3.10.2012, addressed by the Collector, Satara to the Tehsildar and Sub-Divisional Officer also does not dispute the said position. However, he directed his subordinates to submit original file of the appellants sand block with his office for refund of the amount deposited by the appellant. 8. It appears, that subsequently after all the authorities including Circle Officer, Tehsildar, Sub-Divisional Officer and the Collector found that neither the possession of the sand block was handed over to the appellant nor the excavation of sand from the said sand block was done, at the instance of the Collector, the file for grant of refund was being processed. It further appears, that the file in transit was misplaced and on this ground the appellant was denied the refund. It could thus be seen, in these admitted facts, that the denial on the part of the respondents to refund the amount to the appellant can, by no stretch of imagination, be called as reasonable. The action of the respondents, in denying the refund of the amount of the appellant, when the respondents themselves had failed to give possession of the sand block and as a result of which the appellant could not excavate the sand, would smack of arbitrariness. In this premise, we find that the High Court was not justified in relegating the appellant to file a suit. 9. This Court, has time and again held, that the State should act as a model litigant. In this respect, we can gainfully refer to the following observations made by this Court in Urban Improvement Trust, Bikaner vs. Mohan Lal (2010) 1 SCC 512 : 6. This Court has repeatedly expressed the view that Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf. 7. In Dilbagh Rai Jarry v. Union of India [(1974) 3 SCC 554 : 1974 SCC (L&S) 89] this Court extracted with approval the following statement [from an earlier decision of the Kerala High Court (P.P. Abubacker case [Ed.: P.P. Abubacker v. Union of India, AIR 1972 Ker 103 : ILR (1971) 2 Ker 490 : 1971 Ker LJ 723] , AIR pp. 107-08, para 5)]: (SCC p. 562, para 25) 25. … 5. … The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the States interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The layout on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957. 8. In Madras Port Trust v. Hymanshu International [(1979) 4 SCC 176] this Court held: (SCC p. 177, para 2) 2. … It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public au- thority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable. 9. In a three-Judge Bench judgment of Bhag Singh v. UT of Chandigarh [(1985) 3 SCC 737] this Court held: (SCC p. 741, para 3) 3. … The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen. 10. In view of the undisputed position, that in spite of the appellant being the highest bidder and in spite of him depositing the entire amount of auction, since the possession of the sand block was not given to him for reasons not attributable to him and he could not excavate the sand, he will be entitled to get refund of the amount deposited by him. | 1[ds]5. No doubt that, normally, when a petition involves disputed questions of fact and law, the High Court would be slow in entertaining the petition under Article 226 of the Constitution of India. However, it is a rule of self-restraint and not a hard and fast rule6. It could thus be seen, that even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition under Article 226 of the Constitution. However, such a plenary power has to be exercised by the High Court in exceptional circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the action of the State or its instrumentality is arbitrary and unreasonable and, as such, violative of Article 14 of the Constitution of India. In any case, in the present case, we find that there are hardly any disputed questions of facts7. It is undisputed, that the appellant was the highest bidder for the sand block in question. The appellant has deposited an amount of Rs.62,26,085/-. The Panchnama prepared by the Circle Officer, Kale - respondent No.5, clearly exhibited that neither possession of the sand block in question was given to the appellant nor excavation of sand was done from the said sand block. The said position is reiterated by the Tehsildar, Karad – respondent No.4 in his report submitted to the Collector - respondent No.2 dated 9.8.2012. The Sub-Divisional Officer, Karad – respondent No.3 in his report dated 4.9.2012, addressed to the Collector, Satara also confirmed the said position. A perusal of the letter dated 3.10.2012, addressed by the Collector, Satara to the Tehsildar and Sub-Divisional Officer also does not dispute the said position. However, he directed his subordinates to submit original file of the appellants sand block with his office for refund of the amount deposited by the appellant8. It appears, that subsequently after all the authorities including Circle Officer, Tehsildar, Sub-Divisional Officer and the Collector found that neither the possession of the sand block was handed over to the appellant nor the excavation of sand from the said sand block was done, at the instance of the Collector, the file for grant of refund was being processed. It further appears, that the file in transit was misplaced and on this ground the appellant was denied the refund. It could thus be seen, in these admitted facts, that the denial on the part of the respondents to refund the amount to the appellant can, by no stretch of imagination, be called as reasonable. The action of the respondents, in denying the refund of the amount of the appellant, when the respondents themselves had failed to give possession of the sand block and as a result of which the appellant could not excavate the sand, would smack of arbitrariness. In this premise, we find that the High Court was not justified in relegating the appellant to file a suit10. In view of the undisputed position, that in spite of the appellant being the highest bidder and in spite of him depositing the entire amount of auction, since the possession of the sand block was not given to him for reasons not attributable to him and he could not excavate the sand, he will be entitled to get refund of the amount deposited by him. | 1 | 2,494 | 638 | ### 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:
reiterated by the Tehsildar, Karad – respondent No.4 in his report submitted to the Collector - respondent No.2 dated 9.8.2012. The Sub-Divisional Officer, Karad – respondent No.3 in his report dated 4.9.2012, addressed to the Collector, Satara also confirmed the said position. A perusal of the letter dated 3.10.2012, addressed by the Collector, Satara to the Tehsildar and Sub-Divisional Officer also does not dispute the said position. However, he directed his subordinates to submit original file of the appellants sand block with his office for refund of the amount deposited by the appellant. 8. It appears, that subsequently after all the authorities including Circle Officer, Tehsildar, Sub-Divisional Officer and the Collector found that neither the possession of the sand block was handed over to the appellant nor the excavation of sand from the said sand block was done, at the instance of the Collector, the file for grant of refund was being processed. It further appears, that the file in transit was misplaced and on this ground the appellant was denied the refund. It could thus be seen, in these admitted facts, that the denial on the part of the respondents to refund the amount to the appellant can, by no stretch of imagination, be called as reasonable. The action of the respondents, in denying the refund of the amount of the appellant, when the respondents themselves had failed to give possession of the sand block and as a result of which the appellant could not excavate the sand, would smack of arbitrariness. In this premise, we find that the High Court was not justified in relegating the appellant to file a suit. 9. This Court, has time and again held, that the State should act as a model litigant. In this respect, we can gainfully refer to the following observations made by this Court in Urban Improvement Trust, Bikaner vs. Mohan Lal (2010) 1 SCC 512 : 6. This Court has repeatedly expressed the view that Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf. 7. In Dilbagh Rai Jarry v. Union of India [(1974) 3 SCC 554 : 1974 SCC (L&S) 89] this Court extracted with approval the following statement [from an earlier decision of the Kerala High Court (P.P. Abubacker case [Ed.: P.P. Abubacker v. Union of India, AIR 1972 Ker 103 : ILR (1971) 2 Ker 490 : 1971 Ker LJ 723] , AIR pp. 107-08, para 5)]: (SCC p. 562, para 25) 25. … 5. … The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the States interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The layout on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957. 8. In Madras Port Trust v. Hymanshu International [(1979) 4 SCC 176] this Court held: (SCC p. 177, para 2) 2. … It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public au- thority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable. 9. In a three-Judge Bench judgment of Bhag Singh v. UT of Chandigarh [(1985) 3 SCC 737] this Court held: (SCC p. 741, para 3) 3. … The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen. 10. In view of the undisputed position, that in spite of the appellant being the highest bidder and in spite of him depositing the entire amount of auction, since the possession of the sand block was not given to him for reasons not attributable to him and he could not excavate the sand, he will be entitled to get refund of the amount deposited by him.
### Response:
1
### Explanation:
5. No doubt that, normally, when a petition involves disputed questions of fact and law, the High Court would be slow in entertaining the petition under Article 226 of the Constitution of India. However, it is a rule of self-restraint and not a hard and fast rule6. It could thus be seen, that even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition under Article 226 of the Constitution. However, such a plenary power has to be exercised by the High Court in exceptional circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the action of the State or its instrumentality is arbitrary and unreasonable and, as such, violative of Article 14 of the Constitution of India. In any case, in the present case, we find that there are hardly any disputed questions of facts7. It is undisputed, that the appellant was the highest bidder for the sand block in question. The appellant has deposited an amount of Rs.62,26,085/-. The Panchnama prepared by the Circle Officer, Kale - respondent No.5, clearly exhibited that neither possession of the sand block in question was given to the appellant nor excavation of sand was done from the said sand block. The said position is reiterated by the Tehsildar, Karad – respondent No.4 in his report submitted to the Collector - respondent No.2 dated 9.8.2012. The Sub-Divisional Officer, Karad – respondent No.3 in his report dated 4.9.2012, addressed to the Collector, Satara also confirmed the said position. A perusal of the letter dated 3.10.2012, addressed by the Collector, Satara to the Tehsildar and Sub-Divisional Officer also does not dispute the said position. However, he directed his subordinates to submit original file of the appellants sand block with his office for refund of the amount deposited by the appellant8. It appears, that subsequently after all the authorities including Circle Officer, Tehsildar, Sub-Divisional Officer and the Collector found that neither the possession of the sand block was handed over to the appellant nor the excavation of sand from the said sand block was done, at the instance of the Collector, the file for grant of refund was being processed. It further appears, that the file in transit was misplaced and on this ground the appellant was denied the refund. It could thus be seen, in these admitted facts, that the denial on the part of the respondents to refund the amount to the appellant can, by no stretch of imagination, be called as reasonable. The action of the respondents, in denying the refund of the amount of the appellant, when the respondents themselves had failed to give possession of the sand block and as a result of which the appellant could not excavate the sand, would smack of arbitrariness. In this premise, we find that the High Court was not justified in relegating the appellant to file a suit10. In view of the undisputed position, that in spite of the appellant being the highest bidder and in spite of him depositing the entire amount of auction, since the possession of the sand block was not given to him for reasons not attributable to him and he could not excavate the sand, he will be entitled to get refund of the amount deposited by him.
|
Punjab Financial Corp Vs. M/S.Surya Auto Industries | in hardly ever likely to cooperate in the sale of his assets. The procedure indicated in Mahesh Chandra case will only lead to further delay in realization of the dues by the Corporation by sale of assets. It is always expected that the Corporation will try and realize the maximum sale price by selling the assets by following a procedure which is transparent and acceptable, after due publicity, wherever possible. The subsequent decisions of this Court in Gem Cap, Naini Oxygen and Micro Cast Rubber run counter to the view expressed in Mahesh Chandra case. In our opinion, the issuance of the said guidelines in Mahesh Chandra case are contrary to the letter and the intent of Section 29. In our view, the said observations in Mahesh Chandra case do not lay down the correct law and the said decision is overruled." 14. The proposition of law which can be culled out from the decisions noted above is that even though the primary function of a corporation established under Section 3 of the Act is to promote small and medium industries in the State, but it is not obliged to revive and resurrect every sick industrial unit de hors the financial implications of such exercise. The corporation is not supposed to give loans and refrain from taking action for recovery thereof. Being an instrumentality of the State, the corporation is expected to act fairly and reasonably qua its borrowers/debtors, but it is not expected to flounder public money for promoting private interests. The relationship between the corporation and borrower is that of creditor and debtor. The corporation is expected to recover the loans already given so that it can give fresh loans/financial assistance to others. The proceedings initiated by the corporation and action taken for recovery of the outstanding dues cannot be nullified by the courts except when such action is found to be in violation of any statutory provision resulting in prejudice to the borrower or where such proceeding/action is shown to be wholly arbitrary, unreasonable and unfair. The court cannot sit as an appellate authority over the action of the corporation and substitute its decision for the one taken by the corporation. 15. If the order impugned in this appeal is examined in the light of the principles laid down in U.P. Financial Corporation v. Gem Cap (India) Pvt. Ltd. (supra) and Haryana Financial Corporation v. Jagdamba Oil Mills (supra), we do not find any difficulty in holding that the High Court committed an error in declaring that the action taken by the Corporation was unfair and unreasonable and the direction issued for review of all pending cases where penal interest has been compounded is legally unsustainable. While decrying the appellant-Corporation for allegedly going into slumber after taking over the unit of the respondent in furtherance of the first notice issued under Section 29 of the Act, the High Court overlooked many important factors, which are enumerated below: (i) The respondent miserably failed to discharge its obligation to repay the loan together with interest and as against the outstanding dues of more than Rs. 36 lacs in 2002, a paltry sum of Rs. 2.70 lacs was deposited. (ii) The appellant-Corporation issued notices dated 2.12.2002; 3.3.2003, 30.5.2003 and 29.8.2003 to the respondent requiring it to pay the amount specified therein, but the latter did not respond to either of the notices. (iii) Vide letter dated 10.9.2004, the appellant-Corporation offered to reduce the rate of interest and reschedule the payment of dues, but the respondent did not avail the same. (iv) The respondent did not take benefit of the schemes notified on 3.1.2005 and 18.3.2005 for restoration of the unit by paying the principal amount along with 10% of the outstanding interest. 16. In our view, the appellant-Corporation had acted in a most reasonable and fair manner and the High Court was not justified in nullifying the second notice issued under Section 29 of the Act by assuming that the appellant-Corporation had not taken effective steps for realization of its dues in furtherance of first notice. Unfortunately, the High Court ignored that the respondent had not only adopted a recalcitrant attitude in the matter of payment of the outstanding dues, but also failed to avail the concessions offered by the appellant-Corporation by reducing the rate of interest and rescheduling the payment of outstanding dues and did not take benefit of the schemes notified by the appellant-Corporation for restoration of unit on payment of the principal amount with a 10% outstanding interest. 17. The High Court also committed serious error in declaring that he appellant-Corporation will be entitled to charge simple interest at the rate of 10% w.e.f. 1.4.2003 i.e., after expiry of six months from the date of taking over of the unit. Undisputedly, the respondent had not challenged the terms of loan agreement. Therefore, the High Court could not have suo motu altered terms of agreement and directed the appellant to make fresh calculation of the outstanding dues and allowed the respondent to pay the amount as per fresh demand by selling the mortgaged property. This approach of the High Court is ex facie contrary to the law laid down in U.P. Financial Corporation v. Gem Cap (India) Pvt. Ltd. (supra) and Haryana Financial Corporation v. Jagdamba Oil Mills (supra). 18. The direction given by the High Court for review of pending cases in the light of judgment of this Court in Central Bank of India v. Ravindra (supra) is also unsustainable because, as mentioned above, the High Court was not called upon to examine the legality or otherwise of the terms of agreement entered into between the appellant-Corporation and respondent under which the latter was obliged to pay interest at the particular rate with periodical rests. Moreover, conclusion No. 3 contained in para 55 of that judgment clearly postulates that stipulations incorporated in the contract entered into and binding on the parties shall govern their substantive rights and obligations in the matter of recovery and payment of interest. | 1[ds]We are, therefore, of the view that this is not a matter where the High Court should have stepped in and substituted its judgment for the judgment of the Corporation which should be deemed to know its interests better whatever the sympathies the Court had for the prosperity of the Company. In matters commercial, the courts should not risk their judgments for the judgments of the bodies to whom that task is assigned."16. In our view, the appellant-Corporation had acted in a most reasonable and fair manner and the High Court was not justified in nullifying the second notice issued under Section 29 of the Act by assuming that the appellant-Corporation had not taken effective steps for realization of its dues in furtherance of first notice. Unfortunately, the High Court ignored that the respondent had not only adopted a recalcitrant attitude in the matter of payment of the outstanding dues, but also failed to avail the concessions offered by the appellant-Corporation by reducing the rate of interest and rescheduling the payment of outstanding dues and did not take benefit of the schemes notified by the appellant-Corporation for restoration of unit on payment of the principal amount with a 10% outstanding interest17. The High Court also committed serious error in declaring that he appellant-Corporation will be entitled to charge simple interest at the rate of 10% w.e.f. 1.4.2003 i.e., after expiry of six months from the date of taking over of the unit. Undisputedly, the respondent had not challenged the terms of loan agreement. Therefore, the High Court could not have suo motu altered terms of agreement and directed the appellant to make fresh calculation of the outstanding dues and allowed the respondent to pay the amount as per fresh demand by selling the mortgaged property. This approach of the High Court is ex facie contrary to the law laid down in U.P. Financial Corporation v. Gem Cap (India) Pvt. Ltd. (supra) and Haryana Financial Corporation v. Jagdamba Oil Mills (supra)18. The direction given by the High Court for review of pending cases in the light of judgment of this Court in Central Bank of India v. Ravindra (supra) is also unsustainable because, as mentioned above, the High Court was not called upon to examine the legality or otherwise of the terms of agreement entered into between the appellant-Corporation and respondent under which the latter was obliged to pay interest at the particular rate with periodical rests. Moreover, conclusion No. 3 contained in para 55 of that judgment clearly postulates that stipulations incorporated in the contract entered into and binding on the parties shall govern their substantive rights and obligations in the matter of recovery and payment of interest | 1 | 5,877 | 490 | ### 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:
in hardly ever likely to cooperate in the sale of his assets. The procedure indicated in Mahesh Chandra case will only lead to further delay in realization of the dues by the Corporation by sale of assets. It is always expected that the Corporation will try and realize the maximum sale price by selling the assets by following a procedure which is transparent and acceptable, after due publicity, wherever possible. The subsequent decisions of this Court in Gem Cap, Naini Oxygen and Micro Cast Rubber run counter to the view expressed in Mahesh Chandra case. In our opinion, the issuance of the said guidelines in Mahesh Chandra case are contrary to the letter and the intent of Section 29. In our view, the said observations in Mahesh Chandra case do not lay down the correct law and the said decision is overruled." 14. The proposition of law which can be culled out from the decisions noted above is that even though the primary function of a corporation established under Section 3 of the Act is to promote small and medium industries in the State, but it is not obliged to revive and resurrect every sick industrial unit de hors the financial implications of such exercise. The corporation is not supposed to give loans and refrain from taking action for recovery thereof. Being an instrumentality of the State, the corporation is expected to act fairly and reasonably qua its borrowers/debtors, but it is not expected to flounder public money for promoting private interests. The relationship between the corporation and borrower is that of creditor and debtor. The corporation is expected to recover the loans already given so that it can give fresh loans/financial assistance to others. The proceedings initiated by the corporation and action taken for recovery of the outstanding dues cannot be nullified by the courts except when such action is found to be in violation of any statutory provision resulting in prejudice to the borrower or where such proceeding/action is shown to be wholly arbitrary, unreasonable and unfair. The court cannot sit as an appellate authority over the action of the corporation and substitute its decision for the one taken by the corporation. 15. If the order impugned in this appeal is examined in the light of the principles laid down in U.P. Financial Corporation v. Gem Cap (India) Pvt. Ltd. (supra) and Haryana Financial Corporation v. Jagdamba Oil Mills (supra), we do not find any difficulty in holding that the High Court committed an error in declaring that the action taken by the Corporation was unfair and unreasonable and the direction issued for review of all pending cases where penal interest has been compounded is legally unsustainable. While decrying the appellant-Corporation for allegedly going into slumber after taking over the unit of the respondent in furtherance of the first notice issued under Section 29 of the Act, the High Court overlooked many important factors, which are enumerated below: (i) The respondent miserably failed to discharge its obligation to repay the loan together with interest and as against the outstanding dues of more than Rs. 36 lacs in 2002, a paltry sum of Rs. 2.70 lacs was deposited. (ii) The appellant-Corporation issued notices dated 2.12.2002; 3.3.2003, 30.5.2003 and 29.8.2003 to the respondent requiring it to pay the amount specified therein, but the latter did not respond to either of the notices. (iii) Vide letter dated 10.9.2004, the appellant-Corporation offered to reduce the rate of interest and reschedule the payment of dues, but the respondent did not avail the same. (iv) The respondent did not take benefit of the schemes notified on 3.1.2005 and 18.3.2005 for restoration of the unit by paying the principal amount along with 10% of the outstanding interest. 16. In our view, the appellant-Corporation had acted in a most reasonable and fair manner and the High Court was not justified in nullifying the second notice issued under Section 29 of the Act by assuming that the appellant-Corporation had not taken effective steps for realization of its dues in furtherance of first notice. Unfortunately, the High Court ignored that the respondent had not only adopted a recalcitrant attitude in the matter of payment of the outstanding dues, but also failed to avail the concessions offered by the appellant-Corporation by reducing the rate of interest and rescheduling the payment of outstanding dues and did not take benefit of the schemes notified by the appellant-Corporation for restoration of unit on payment of the principal amount with a 10% outstanding interest. 17. The High Court also committed serious error in declaring that he appellant-Corporation will be entitled to charge simple interest at the rate of 10% w.e.f. 1.4.2003 i.e., after expiry of six months from the date of taking over of the unit. Undisputedly, the respondent had not challenged the terms of loan agreement. Therefore, the High Court could not have suo motu altered terms of agreement and directed the appellant to make fresh calculation of the outstanding dues and allowed the respondent to pay the amount as per fresh demand by selling the mortgaged property. This approach of the High Court is ex facie contrary to the law laid down in U.P. Financial Corporation v. Gem Cap (India) Pvt. Ltd. (supra) and Haryana Financial Corporation v. Jagdamba Oil Mills (supra). 18. The direction given by the High Court for review of pending cases in the light of judgment of this Court in Central Bank of India v. Ravindra (supra) is also unsustainable because, as mentioned above, the High Court was not called upon to examine the legality or otherwise of the terms of agreement entered into between the appellant-Corporation and respondent under which the latter was obliged to pay interest at the particular rate with periodical rests. Moreover, conclusion No. 3 contained in para 55 of that judgment clearly postulates that stipulations incorporated in the contract entered into and binding on the parties shall govern their substantive rights and obligations in the matter of recovery and payment of interest.
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We are, therefore, of the view that this is not a matter where the High Court should have stepped in and substituted its judgment for the judgment of the Corporation which should be deemed to know its interests better whatever the sympathies the Court had for the prosperity of the Company. In matters commercial, the courts should not risk their judgments for the judgments of the bodies to whom that task is assigned."16. In our view, the appellant-Corporation had acted in a most reasonable and fair manner and the High Court was not justified in nullifying the second notice issued under Section 29 of the Act by assuming that the appellant-Corporation had not taken effective steps for realization of its dues in furtherance of first notice. Unfortunately, the High Court ignored that the respondent had not only adopted a recalcitrant attitude in the matter of payment of the outstanding dues, but also failed to avail the concessions offered by the appellant-Corporation by reducing the rate of interest and rescheduling the payment of outstanding dues and did not take benefit of the schemes notified by the appellant-Corporation for restoration of unit on payment of the principal amount with a 10% outstanding interest17. The High Court also committed serious error in declaring that he appellant-Corporation will be entitled to charge simple interest at the rate of 10% w.e.f. 1.4.2003 i.e., after expiry of six months from the date of taking over of the unit. Undisputedly, the respondent had not challenged the terms of loan agreement. Therefore, the High Court could not have suo motu altered terms of agreement and directed the appellant to make fresh calculation of the outstanding dues and allowed the respondent to pay the amount as per fresh demand by selling the mortgaged property. This approach of the High Court is ex facie contrary to the law laid down in U.P. Financial Corporation v. Gem Cap (India) Pvt. Ltd. (supra) and Haryana Financial Corporation v. Jagdamba Oil Mills (supra)18. The direction given by the High Court for review of pending cases in the light of judgment of this Court in Central Bank of India v. Ravindra (supra) is also unsustainable because, as mentioned above, the High Court was not called upon to examine the legality or otherwise of the terms of agreement entered into between the appellant-Corporation and respondent under which the latter was obliged to pay interest at the particular rate with periodical rests. Moreover, conclusion No. 3 contained in para 55 of that judgment clearly postulates that stipulations incorporated in the contract entered into and binding on the parties shall govern their substantive rights and obligations in the matter of recovery and payment of interest
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Mahanth Ramswaroop Das Vs. The State Of Bihar | and circumstances of the case, the petitioner could be legally assessed for the income of the Estate in 1355 Fasli when the Estate was in the hand of he Receiver ?" 2. With special leave under Art. 136 of the Constitution, this appeal is preferred against the order of the High Court. The appellant is the Mahant of the Asthal Estate, Salauna, in the District of Bhagalpur in Bihar. In a suit concerning that estate, a Court Receiver was appointed by the First Class Subordinate Judge, Monghyr, to manage the estate. The Receiver functioned till sometime in December, 1949, and under the order of the Subordinate Judge he handed over charge of the estate to the appellant on January 8, 1950. On January 15, 1950, the appellant submitted a return of income of the estate to the Agricultural Income-tax Officer, Monghyr, for the Fasli year 1355 corresponding to September 16, 1948 to September 15, 1949. The Agricultural Income-tax Officer assessed on August 7, 1950, the agricultural income of the estate at Rs. 90,507-2-6 and ordered the appellant to pay Rs. 20,290-13-0 as agricultural income-tax. Appeals against the order of assessment preferred to the Commissioner of Agricultural Income-tax and the Board of Agricultural Income-tax, Bihar, were unsuccessful. The Board however referred the question set out hereinafter to the High Court under S. 28(3) of the Act as arising out of its order. 3. The only question which falls to be determined in this appeal is whether the appellant was liable to be assessed to pay agricultural income-tax for the year in which the estate was in the management of the Court Receiver. Section 3 of the Act which is the charging section provides :"Agricultural Income-tax shall be charged for each financial year in accordance with and subject to the provisions of, this Act on the total agricultural income of the previous year of every person". By S. 4, it is provided :"Save as hereinafter provided, this Act shall apply to all agricultural income derived from land situated in the State of Bihar". 4. The income of the estate of the appellant was not exempt from payment of tax and by virtue of S. 3, agricultural income-tax was charged upon the income for the assessment year in question, and the appellant was prima facie liable as owner of the estate to pay tax on that income. The appellant however relied upon S. 13 of the Act which provides :"Where any person holds land, from which agricultural income is derived, as a common manager appointed under any law for the time being in force, or under any agreement or as receiver, administrator or the like on behalf of persons jointly interested in such land or in the agricultural income derived therefrom, the aggregate of the sums payable as agricultural income-tax by each person on the agricultural income derived from such land and received by him shall be assessed on such common manager receiver, administrator or the like, and he shall be deemed to be the assessee in respect of the agricultural income-tax so payable by each such person and shall be liable to pay the same". 5. The appellant urged that if the land from which agricultural income is derived is held by a Receiver and the income is received by the Receiver, the Receiver alone can, by virtue of S. 13, be deemed to be the assessee and the Receiver alone is liable to pay the tax in respect of that income. In support of his contention, the appellant relies upon the definition of the word, "person" in S. 2 cl. (m) which states :" "Person" means any individual or association of individuals, owning or holding property for himself or for any other, or partly for his own benefit and partly for another, either as owner, trustee, receiver, common manager, administrator or executor or in any capacity recognised by law, and includes an undivided Hindu family, firm or company." 6. In our view, there is no substance in the contention raised by the appellant. The liability to pay tax is charged on the agricultural income of every person. The income though collected by the Receiver was the income of the appellant. By S. 13, in addition to the owner, the Receiver is to be deemed to be an assessee. But the fact that the Receiver may, because he held the property from which income was derived in the year of account, be deemed to be an assessee and liable to pay tax, does not absolve the appellant, on whose behalf the income was received from the obligation to pay agricultural income-tax. Section 13 merely provides a machinery for recovery of tax, and is not a charging section. When property is in the possession of the receiver, common manager or administrator, the taxing authorities may, but are not bound, to treat such persons as assessees and recover tax. The taxing authorities may always proceed against the owner of the income and assess the tax against him. The definition in the connotation of "person" undoubtedly included a Receiver, trustee, common manager, administrator or executor, and by such inclusion, it is open to the taxing authorities to assess tax against any such persons; but on that account, the income in the hand of the owner is not exempt from liability to assessment of tax. 7. Counsel for the appellant urged that the income received by the appellant from the Receiver did not retain its character of agricultural income and therefore also the appellant was not liable to pay agricultural income-tax. But this contention was never raised before the taxing authorises and no such question has been referred to this court. The character of the income was accepted to be agricultural income in the hands of the appellant and the only question which was sought to be referred and raised before the Board of Agricultural Income-tax was one as to the liability of the appellant to be assessed to agricultural income-tax for the year in question. | 0[ds]6. In our view, there is no substance in the contention raised by the appellant. The liability to pay tax is charged on the agricultural income of every person. The income though collected by the Receiver was the income of the appellant. By S. 13, in addition to the owner, the Receiver is to be deemed to be an assessee. But the fact that the Receiver may, because he held the property from which income was derived in the year of account, be deemed to be an assessee and liable to pay tax, does not absolve the appellant, on whose behalf the income was received from the obligation to pay agricultural income-tax. Section 13 merely provides a machinery for recovery of tax, and is not a charging section. When property is in the possession of the receiver, common manager or administrator, the taxing authorities may, but are not bound, to treat such persons as assessees and recover tax. The taxing authorities may always proceed against the owner of the income and assess the tax against him. The definition in the connotation of "person" undoubtedly included a Receiver, trustee, common manager, administrator or executor, and by such inclusion, it is open to the taxing authorities to assess tax against any such persons; but on that account, the income in the hand of the owner is not exempt from liability to assessment of taxBut this contention was never raised before the taxing authorises and no such question has been referred to this court. The character of the income was accepted to be agricultural income in the hands of the appellant and the only question which was sought to be referred and raised before the Board of Agricultural Income-tax was one as to the liability of the appellant to be assessed to agricultural income-tax for the year in question. | 0 | 1,186 | 342 | ### 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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and circumstances of the case, the petitioner could be legally assessed for the income of the Estate in 1355 Fasli when the Estate was in the hand of he Receiver ?" 2. With special leave under Art. 136 of the Constitution, this appeal is preferred against the order of the High Court. The appellant is the Mahant of the Asthal Estate, Salauna, in the District of Bhagalpur in Bihar. In a suit concerning that estate, a Court Receiver was appointed by the First Class Subordinate Judge, Monghyr, to manage the estate. The Receiver functioned till sometime in December, 1949, and under the order of the Subordinate Judge he handed over charge of the estate to the appellant on January 8, 1950. On January 15, 1950, the appellant submitted a return of income of the estate to the Agricultural Income-tax Officer, Monghyr, for the Fasli year 1355 corresponding to September 16, 1948 to September 15, 1949. The Agricultural Income-tax Officer assessed on August 7, 1950, the agricultural income of the estate at Rs. 90,507-2-6 and ordered the appellant to pay Rs. 20,290-13-0 as agricultural income-tax. Appeals against the order of assessment preferred to the Commissioner of Agricultural Income-tax and the Board of Agricultural Income-tax, Bihar, were unsuccessful. The Board however referred the question set out hereinafter to the High Court under S. 28(3) of the Act as arising out of its order. 3. The only question which falls to be determined in this appeal is whether the appellant was liable to be assessed to pay agricultural income-tax for the year in which the estate was in the management of the Court Receiver. Section 3 of the Act which is the charging section provides :"Agricultural Income-tax shall be charged for each financial year in accordance with and subject to the provisions of, this Act on the total agricultural income of the previous year of every person". By S. 4, it is provided :"Save as hereinafter provided, this Act shall apply to all agricultural income derived from land situated in the State of Bihar". 4. The income of the estate of the appellant was not exempt from payment of tax and by virtue of S. 3, agricultural income-tax was charged upon the income for the assessment year in question, and the appellant was prima facie liable as owner of the estate to pay tax on that income. The appellant however relied upon S. 13 of the Act which provides :"Where any person holds land, from which agricultural income is derived, as a common manager appointed under any law for the time being in force, or under any agreement or as receiver, administrator or the like on behalf of persons jointly interested in such land or in the agricultural income derived therefrom, the aggregate of the sums payable as agricultural income-tax by each person on the agricultural income derived from such land and received by him shall be assessed on such common manager receiver, administrator or the like, and he shall be deemed to be the assessee in respect of the agricultural income-tax so payable by each such person and shall be liable to pay the same". 5. The appellant urged that if the land from which agricultural income is derived is held by a Receiver and the income is received by the Receiver, the Receiver alone can, by virtue of S. 13, be deemed to be the assessee and the Receiver alone is liable to pay the tax in respect of that income. In support of his contention, the appellant relies upon the definition of the word, "person" in S. 2 cl. (m) which states :" "Person" means any individual or association of individuals, owning or holding property for himself or for any other, or partly for his own benefit and partly for another, either as owner, trustee, receiver, common manager, administrator or executor or in any capacity recognised by law, and includes an undivided Hindu family, firm or company." 6. In our view, there is no substance in the contention raised by the appellant. The liability to pay tax is charged on the agricultural income of every person. The income though collected by the Receiver was the income of the appellant. By S. 13, in addition to the owner, the Receiver is to be deemed to be an assessee. But the fact that the Receiver may, because he held the property from which income was derived in the year of account, be deemed to be an assessee and liable to pay tax, does not absolve the appellant, on whose behalf the income was received from the obligation to pay agricultural income-tax. Section 13 merely provides a machinery for recovery of tax, and is not a charging section. When property is in the possession of the receiver, common manager or administrator, the taxing authorities may, but are not bound, to treat such persons as assessees and recover tax. The taxing authorities may always proceed against the owner of the income and assess the tax against him. The definition in the connotation of "person" undoubtedly included a Receiver, trustee, common manager, administrator or executor, and by such inclusion, it is open to the taxing authorities to assess tax against any such persons; but on that account, the income in the hand of the owner is not exempt from liability to assessment of tax. 7. Counsel for the appellant urged that the income received by the appellant from the Receiver did not retain its character of agricultural income and therefore also the appellant was not liable to pay agricultural income-tax. But this contention was never raised before the taxing authorises and no such question has been referred to this court. The character of the income was accepted to be agricultural income in the hands of the appellant and the only question which was sought to be referred and raised before the Board of Agricultural Income-tax was one as to the liability of the appellant to be assessed to agricultural income-tax for the year in question.
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6. In our view, there is no substance in the contention raised by the appellant. The liability to pay tax is charged on the agricultural income of every person. The income though collected by the Receiver was the income of the appellant. By S. 13, in addition to the owner, the Receiver is to be deemed to be an assessee. But the fact that the Receiver may, because he held the property from which income was derived in the year of account, be deemed to be an assessee and liable to pay tax, does not absolve the appellant, on whose behalf the income was received from the obligation to pay agricultural income-tax. Section 13 merely provides a machinery for recovery of tax, and is not a charging section. When property is in the possession of the receiver, common manager or administrator, the taxing authorities may, but are not bound, to treat such persons as assessees and recover tax. The taxing authorities may always proceed against the owner of the income and assess the tax against him. The definition in the connotation of "person" undoubtedly included a Receiver, trustee, common manager, administrator or executor, and by such inclusion, it is open to the taxing authorities to assess tax against any such persons; but on that account, the income in the hand of the owner is not exempt from liability to assessment of taxBut this contention was never raised before the taxing authorises and no such question has been referred to this court. The character of the income was accepted to be agricultural income in the hands of the appellant and the only question which was sought to be referred and raised before the Board of Agricultural Income-tax was one as to the liability of the appellant to be assessed to agricultural income-tax for the year in question.
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SATLUJ JAL VIDYUT NIGAM LTD Vs. RAJ KUMAR RAJINDER SINGH(D)THRU LRS | to gain by anothers loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-1S) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non- mentioning of the release deed at the trial tantamounts to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Exhibit B-15 and non- suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.? 73. In K.K. Modi v. K.N. Modi, (1998) 3 SCC 573 , it was observed that one of the examples cited as an abuse of the process of the court is re- litigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. 74. Learned counsel for the respondent has placed reliance on the decision rendered in Ujjagar Singh v. Collector, Bhatinda, (1996) 5 SCC 14 , wherein this Court examined the effect of coming into force of Punjab Land Reforms Act, 1972 and vesting of the surplus area in the State. In this case, the area in possession of landlord was declared surplus under the Pepsu Act, but possession had not been taken by the State. It was held that area did not vest finally as the surplus area under the Pepsu Act, owing to coming into force of the new Act, the ceiling area must be determined afresh under the new Punjab Act. In the instant case, the order was passed in ceiling matter in the year 1980 and the adjudication order of Collector (Ceiling) was not questioned nor the order of remand to declare land as surplus and then the additional land was declared surplus in 1993. It was not the case of re-opening of the case. In fact, the land has vested in the State under the Abolition Act. Thereafter, compensation has been obtained, obviously once land has vested in the State, the possession of such land/open land is deemed to be that of the owner. In any view of the matter, in the facts and circumstances of the instant case, compensation could not have been claimed. 75. In State of H.P. v. Harnama, (2004) 13 SCC 534, this Court observed that possession of land was not taken and the tenant was in occupation of the land and had acquired ownership rights before the land was declared surplus as against the landlord. It was further observed that the land in question had been notified as surplus and the fact that the original owner of the land had been paid compensation, would be of no avail to the State if before the date of actual vesting non-occupant tenant in possession of the land had acquired ownership rights. It is totally distinguishable and cannot be applied to the instant case. 76. Learned counsel on behalf of the respondent has referred to the decision rendered in Madan Kishore v. Major Sudhir Sewal, (2008) 8 SCC 744 , wherein question arose with respect to entitlement of sub- tenant to apply under Section 27(4). It was held that the expression in Section 27(4), such tenant who cultivates such land, does not entitle a sub-tenant either to claim proprietary rights or apply for the same under Section 27(4). It was held that he was not a sub-tenant. The decision is of no help to the cause espoused on behalf of LRs. of Rajinder Singh. In the peculiar facts projected in the case the principle fraud vitiates is clearly applicable it cannot be ignored and overlooked under the guise of the scope of proceedings under Section 18/30 of the LA Act. In Re Q. No.5 Bona fide Transferees : 77. With respect to the appeals filed by SJVN Ltd. arising out of judgment and order of 2013 in the matter of bona fide transferees, filed in the year 2014, the High Court has held that the respondents are bona fide transferees from Rajinder Singh. However, it was pointed out on behalf of the appellants that in 72 reference cases, the regular first appeal is still pending in the High Court. It has been held by the Reference Court that the claimants are not entitled to any compensation. In case regular first appeal is pending in the High Court as against the order of reference court against the respondents who claim to be bona fide transferees, obviously, the question of bona fide transferee has to be decided finally in the pending regular first appeal before the High Court. In case appeal has not been filed or has been decided, the compensation to follow the decision. We do not propose to give final verdict on issue at this stage. We leave the question open to the High Court to adjudicate. However, in case compensation has been paid to transferees, the compensation paid shall not be recovered till such time pending appeal is decided. In case no matter against transferees is pending and appeal has been decided in favour of land owners, obviously they have to be paid and this Order will not come in the way. | 1[ds]42. A reading of section 27 makes it clear that on the abolition of estates except for the land which is under personal cultivation of the landowner, vests in the State. Vesting is automatic and would not depend upon the payment of compensation and this has already been held by this Court vide order dated 17.9.1969 in the case filed by Late RajinderSingh. It is crystal clear that vesting of the land is not confined to the land held under the tenancy right. The expression used in section 27 is ?landowner? who holds the land. Thus, there is no scope for the submission that section 27 is applicable only to a land held by the tenant in tenancy. It is applicable to all kinds of land asdefined in the Abolition Act held by the landowner and the definition of the land in Abolition Act is inclusive and would include all kinds of land in a town or village which is not occupied by any site of the building. Thus, all land which is not occupied by any building situated in a town or building would vest in the State and a land whichhas been let for agricultural purpose or for purposes subservient to agriculture or for pasture including the sites of building and other structure of the land, orchard, and ghasnies would vest in the State. Thus, it is apparent that the land which is Banjar, Abadi, Gharat, Kalhu, and Gair-Mumkin are all covered under the definition of land.The big estates were sought to be abolished by the H.P. Abolition Act. When section 27 of the Abolition Act and definition of land is read with ‘holding? and ‘estate? and ‘landowner? as defined in the Punjab Land Revenue Act, 1887 it is clear that the land held by late Rajinder Singh definitely exceeded revenue of Rs.125 per year as is apparent from documents and various orders passed in the case. The object of the Abolition Act is to provide for the abolition of big landed estates and to bring land reform in the law relating to tenancies and to make provisions for matters connected therewith. The land holding of Late Rajinder Singh was a big estate and was definitely covered under the purview of the Act and in particular under section 27 and all the lands vested in the State except the land under his personal cultivation.Thus, we are of the considered opinion thatthe area under personal cultivation which was saved in favour of Rajinder Singh was 64 bighas 12 Biswas only as specified. It is apparent from the order dated 27.2.1962 Khata No.1 Kita measuring 1011 bighas 6 Biswas vested in the ownership of Government of Himachal Pradesh in village Jhakri. In the review on 19.9.1964, there was only partial modification with respect to area 14 bighas 12 Biswas. The land revenue of land at Jakhri as apparent from Jamabandi of 1955-56 at the time when the Abolition Act came into force was Rs.155.58 it was more than Rs.125 as such the land which was Banjar kadim or otherwise not under personal cultivation had vested in the State.The fact is conclusively established that land in question had been declared as surplus and compensation under the Ceiling Act had also been received, even though the land had already vested in the Stateunder the Abolition Act. Once the disputed land had been admittedly declared surplus in Ceiling Act vide order dated 30.6.1980, there was no question of payment of compensation to Rajinder Singh or to his legal representatives in proceedings initiated later on in the year 1987 under the L.A. Act. The Land Acquisition Collector in 1989 was justified in directing that the compensation determined should not be paid due to the effect of the Ceiling Act and that question was raisedin the Reference Court also, it was incumbent upon the Reference Court to go into the aforesaid aspects. It was not fact situation that question of the title has been disputed and decided in reference proceedings but whether Rajinder Singh or his LRs. were entitled to claim compensation in view of the proceedings and that orders passed under the Abolition Act and Ceiling Act were definitely required to be gone into.Thus, we are of the considered opinion thatonce land has been declared surplus and compensation has been received. It was not open to receive it again in the land acquisition case. (iii) In Re: Effect of withdrawal of C.S. No.15/1970 inThe proceedings were initiated in the year 1987for the acquisition of land whereas the order of ceiling was passed earlier in 1980 and 1985 subsequently the surplus area was increased in 1993. By no stretch of any principle of law, Late Rajinder Singh or his successors could have claimed compensation in the proceedings in questioninitiated under the LA Act in the year 1987. In our considered opinion the respondents Rajinder Singh and his family were not entitled to claim any monetary compensation under the LA Act for the said land. The amount that had been withdrawn under the LA Act, was wholly impermissible and tantamount to playing fraud upon the legal system. As a matter of fact, compensation has been taken for the land in the proceedings under the Abolition Act. Even if compensation in respect of certain land was not payable or paid, vesting would not depend upon the same. Land not under personal cultivation of Jagirdars had vested in the State, as such it was not open even to obtain compensation for the very same land either under the provisions of the Ceiling Act which has been received or under the provisions of the LA Act. It was wholly impermissible and illegal and tantamountto scam committed by fraudsters. The cases were withdrawn one after the other just to perpetuate the fraud on the legal system by raising the inconsistent pleas and taking unfair and undue advantage of the wrong continuation of entries in the revenuethe instant case, there had been earlier proceedings which makes it clear that Rajinder Singh was not entitled to claim compensation under the LA Act. It is apparent that there was no subsisting right, title or interest left with Rajinder Singh or his LRs., thus, they could not be permitted to obtain thethe instant case, the order was passed in ceiling matter in the year 1980 and the adjudication order of Collector (Ceiling) was not questioned nor the order of remand to declare land as surplus and then the additional land was declared surplus in 1993. It was not the case of re-opening of the case. In fact, the land has vested in the State under the Abolition Act.Thereafter, compensation has been obtained, obviously once land has vested in the State, the possession of such land/open land is deemed to be that of the owner. In any view of the matter, in the facts and circumstances of the instant case, compensation could not have been claimed.H.P. v. Harnama, (2004) 13 SCC 534, this Court observed that possession of land was not taken and the tenant was in occupation of the land and had acquired ownership rights before the land was declared surplus as against the landlord. It was further observed that the land in question had been notified as surplus and the fact that the original owner of the land had been paid compensation, would be of no avail to the State if before the date of actual vesting non-occupant tenant in possession of the land had acquired ownership rights.It is totally distinguishable and cannot be applied to the instantwas held that the expression in Section 27(4), such tenant who cultivates such land, does not entitle a sub-tenant either to claim proprietary rights or apply for the same under Section 27(4).It was held that he was not a sub-tenant. The decision is of no help to the cause espoused on behalf of LRs. of Rajinder Singh. In the peculiar facts projected in the case the principle fraud vitiates is clearly applicable it cannot be ignored and overlooked under the guise of the scope of proceedings under Section 18/30 of the LA Act.With respect to the appeals filed by SJVN Ltd. arising out of judgment and order of 2013 in the matter of bona fide transferees, filed in the year 2014, the High Court has held that the respondents are bona fide transferees from Rajinder Singh. However, it was pointed out on behalf of the appellants that in 72 reference cases, the regular first appeal is still pending in the High Court. It has been held by the ReferenceCourt that the claimants are not entitled to any compensation. In case regular first appeal is pending in the High Court as against the order of reference court against the respondents who claim to be bona fide transferees, obviously, the question of bona fide transferee has to be decided finally in the pending regular first appeal before the High Court. In case appeal has not been filed or has been decided, the compensation to follow the decision. We do not proposeto give final verdict on issue at this stage. We leave the question open to the High Court to adjudicate. However, in case compensation has been paid to transferees, the compensation paid shall not be recovered till such time pending appeal is decided. In case no matter against transferees is pending and appeal has been decided in favour of land owners, obviously they have to be paid and this Order will not come in the way. | 1 | 17,869 | 1,702 | ### 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:
to gain by anothers loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-1S) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non- mentioning of the release deed at the trial tantamounts to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Exhibit B-15 and non- suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.? 73. In K.K. Modi v. K.N. Modi, (1998) 3 SCC 573 , it was observed that one of the examples cited as an abuse of the process of the court is re- litigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. 74. Learned counsel for the respondent has placed reliance on the decision rendered in Ujjagar Singh v. Collector, Bhatinda, (1996) 5 SCC 14 , wherein this Court examined the effect of coming into force of Punjab Land Reforms Act, 1972 and vesting of the surplus area in the State. In this case, the area in possession of landlord was declared surplus under the Pepsu Act, but possession had not been taken by the State. It was held that area did not vest finally as the surplus area under the Pepsu Act, owing to coming into force of the new Act, the ceiling area must be determined afresh under the new Punjab Act. In the instant case, the order was passed in ceiling matter in the year 1980 and the adjudication order of Collector (Ceiling) was not questioned nor the order of remand to declare land as surplus and then the additional land was declared surplus in 1993. It was not the case of re-opening of the case. In fact, the land has vested in the State under the Abolition Act. Thereafter, compensation has been obtained, obviously once land has vested in the State, the possession of such land/open land is deemed to be that of the owner. In any view of the matter, in the facts and circumstances of the instant case, compensation could not have been claimed. 75. In State of H.P. v. Harnama, (2004) 13 SCC 534, this Court observed that possession of land was not taken and the tenant was in occupation of the land and had acquired ownership rights before the land was declared surplus as against the landlord. It was further observed that the land in question had been notified as surplus and the fact that the original owner of the land had been paid compensation, would be of no avail to the State if before the date of actual vesting non-occupant tenant in possession of the land had acquired ownership rights. It is totally distinguishable and cannot be applied to the instant case. 76. Learned counsel on behalf of the respondent has referred to the decision rendered in Madan Kishore v. Major Sudhir Sewal, (2008) 8 SCC 744 , wherein question arose with respect to entitlement of sub- tenant to apply under Section 27(4). It was held that the expression in Section 27(4), such tenant who cultivates such land, does not entitle a sub-tenant either to claim proprietary rights or apply for the same under Section 27(4). It was held that he was not a sub-tenant. The decision is of no help to the cause espoused on behalf of LRs. of Rajinder Singh. In the peculiar facts projected in the case the principle fraud vitiates is clearly applicable it cannot be ignored and overlooked under the guise of the scope of proceedings under Section 18/30 of the LA Act. In Re Q. No.5 Bona fide Transferees : 77. With respect to the appeals filed by SJVN Ltd. arising out of judgment and order of 2013 in the matter of bona fide transferees, filed in the year 2014, the High Court has held that the respondents are bona fide transferees from Rajinder Singh. However, it was pointed out on behalf of the appellants that in 72 reference cases, the regular first appeal is still pending in the High Court. It has been held by the Reference Court that the claimants are not entitled to any compensation. In case regular first appeal is pending in the High Court as against the order of reference court against the respondents who claim to be bona fide transferees, obviously, the question of bona fide transferee has to be decided finally in the pending regular first appeal before the High Court. In case appeal has not been filed or has been decided, the compensation to follow the decision. We do not propose to give final verdict on issue at this stage. We leave the question open to the High Court to adjudicate. However, in case compensation has been paid to transferees, the compensation paid shall not be recovered till such time pending appeal is decided. In case no matter against transferees is pending and appeal has been decided in favour of land owners, obviously they have to be paid and this Order will not come in the way.
### Response:
1
### Explanation:
Rajinder Singh or to his legal representatives in proceedings initiated later on in the year 1987 under the L.A. Act. The Land Acquisition Collector in 1989 was justified in directing that the compensation determined should not be paid due to the effect of the Ceiling Act and that question was raisedin the Reference Court also, it was incumbent upon the Reference Court to go into the aforesaid aspects. It was not fact situation that question of the title has been disputed and decided in reference proceedings but whether Rajinder Singh or his LRs. were entitled to claim compensation in view of the proceedings and that orders passed under the Abolition Act and Ceiling Act were definitely required to be gone into.Thus, we are of the considered opinion thatonce land has been declared surplus and compensation has been received. It was not open to receive it again in the land acquisition case. (iii) In Re: Effect of withdrawal of C.S. No.15/1970 inThe proceedings were initiated in the year 1987for the acquisition of land whereas the order of ceiling was passed earlier in 1980 and 1985 subsequently the surplus area was increased in 1993. By no stretch of any principle of law, Late Rajinder Singh or his successors could have claimed compensation in the proceedings in questioninitiated under the LA Act in the year 1987. In our considered opinion the respondents Rajinder Singh and his family were not entitled to claim any monetary compensation under the LA Act for the said land. The amount that had been withdrawn under the LA Act, was wholly impermissible and tantamount to playing fraud upon the legal system. As a matter of fact, compensation has been taken for the land in the proceedings under the Abolition Act. Even if compensation in respect of certain land was not payable or paid, vesting would not depend upon the same. Land not under personal cultivation of Jagirdars had vested in the State, as such it was not open even to obtain compensation for the very same land either under the provisions of the Ceiling Act which has been received or under the provisions of the LA Act. It was wholly impermissible and illegal and tantamountto scam committed by fraudsters. The cases were withdrawn one after the other just to perpetuate the fraud on the legal system by raising the inconsistent pleas and taking unfair and undue advantage of the wrong continuation of entries in the revenuethe instant case, there had been earlier proceedings which makes it clear that Rajinder Singh was not entitled to claim compensation under the LA Act. It is apparent that there was no subsisting right, title or interest left with Rajinder Singh or his LRs., thus, they could not be permitted to obtain thethe instant case, the order was passed in ceiling matter in the year 1980 and the adjudication order of Collector (Ceiling) was not questioned nor the order of remand to declare land as surplus and then the additional land was declared surplus in 1993. It was not the case of re-opening of the case. In fact, the land has vested in the State under the Abolition Act.Thereafter, compensation has been obtained, obviously once land has vested in the State, the possession of such land/open land is deemed to be that of the owner. In any view of the matter, in the facts and circumstances of the instant case, compensation could not have been claimed.H.P. v. Harnama, (2004) 13 SCC 534, this Court observed that possession of land was not taken and the tenant was in occupation of the land and had acquired ownership rights before the land was declared surplus as against the landlord. It was further observed that the land in question had been notified as surplus and the fact that the original owner of the land had been paid compensation, would be of no avail to the State if before the date of actual vesting non-occupant tenant in possession of the land had acquired ownership rights.It is totally distinguishable and cannot be applied to the instantwas held that the expression in Section 27(4), such tenant who cultivates such land, does not entitle a sub-tenant either to claim proprietary rights or apply for the same under Section 27(4).It was held that he was not a sub-tenant. The decision is of no help to the cause espoused on behalf of LRs. of Rajinder Singh. In the peculiar facts projected in the case the principle fraud vitiates is clearly applicable it cannot be ignored and overlooked under the guise of the scope of proceedings under Section 18/30 of the LA Act.With respect to the appeals filed by SJVN Ltd. arising out of judgment and order of 2013 in the matter of bona fide transferees, filed in the year 2014, the High Court has held that the respondents are bona fide transferees from Rajinder Singh. However, it was pointed out on behalf of the appellants that in 72 reference cases, the regular first appeal is still pending in the High Court. It has been held by the ReferenceCourt that the claimants are not entitled to any compensation. In case regular first appeal is pending in the High Court as against the order of reference court against the respondents who claim to be bona fide transferees, obviously, the question of bona fide transferee has to be decided finally in the pending regular first appeal before the High Court. In case appeal has not been filed or has been decided, the compensation to follow the decision. We do not proposeto give final verdict on issue at this stage. We leave the question open to the High Court to adjudicate. However, in case compensation has been paid to transferees, the compensation paid shall not be recovered till such time pending appeal is decided. In case no matter against transferees is pending and appeal has been decided in favour of land owners, obviously they have to be paid and this Order will not come in the way.
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The Commissioner of Income Tax-2 Vs. Al-Kabeer Exports Limited | of Section 80HHC are made applicable not only for the purposes of computation, but it is the amount of profits eligible for deduction under Section 80HHC and as computed under subsections (3) or (3A), as the case may be, that have to be reduced from the net profits of the assessee. A subsequent judgment of the Madras High Court in Commissioner of Income Tax v. Rajanikant Schnelder and Associates Pvt. Ltd. (2008) 302 ITR 22 (Mad) similarly construed the provisions of clause (iii) of the Explanation to Section 115J. The question before the Madras High Court was whether the Tribunal was right in holding that an assessee having no profit from export was eligible for deduction under Section 80HHC on its book profits under Section 115J. The Division Bench of the Madras High Court held that the Assessing Officer was not entitled to touch the profit and loss account prepared by the assessee and the book profits so arrived at should be the basis for taxation. Since the case before the Madras High Court related to the construction of Section 115J, it is not necessary to dwell on this aspect of the case any further. Though the Madras High Court has observed that the provisions of Section 115J and 115JA are similar, that is in the context of the applicability of the principles laid down in Apollo Tyres (supra) as regards the account prepared by the assessee under Parts II and III of Schedule VI to the Companies Act 1956. From the judgment of the Madras High Court it appears that though the question that was framed referred to Section 115J, there is some discussion in the judgment of the provision of Section 115JA. 28. In Karnataka Small Scale Industries Development Corporation Ltd. v. Commissioner of Income Tax (2002) 258 ITR 770 the Supreme Court held that Section 115J does not create any right nor does it serve to allow all the deductions taken into consideration for determining whether the total income should be quantified under Section 115J (1), to be carried forward under subsection (2) of Section 115J. The provision, held the Supreme Court, allowed only the unabsorbed losses, depreciation, investment allowance etc., which otherwise could have been carried forward, to be carried forward. 29. A Division Bench of this Court in Commissioner of Income Tax v. Ajanta Pharma Ltd. (2009) 23 DTR (Bom) 1 held that a company governed by the MAT regime is entitled to the same deduction of export profits under Section 80HHC as any other company involved in export and that consequently an assessee governed by the MAT regime would be subject to the restriction contained in subsection (1B) of Section 80HHC. The Division Bench held as follows :Sec. 115JB also uses the expression profits eligible for deduction. There really can be no difficulty in understanding what this means. Only those profits which are eligible and computed in terms of subs. (3) or (3A) and quantified in terms of subs. (1B). The computation whether under subs. (3) or (3A) is for the purpose of subs. (1) or (1A). Sec.80HHC (1) permits a deduction to the extent of profits referred to in subs. (1B). The ambit of deeming fiction30. Section 115JB provides for a deeming fiction. The deeming fiction is brought into existence where in the case of a company which is an assessee the income tax payable on the total income as computed under the Act in respect of a previous year falling within the purview of the Section is less than a stipulated percentage of its book profits. The deeming fiction is that in such a case the book profit shall be deemed to be the total income of the assessee and the tax payable by the assessee on such total income shall be the amount of the income tax at the rate stipulated in sub section (1). A deeming fiction created by the law has to be given full effect. Equally, the deeming fiction has to be applied within the parameters envisaged by the legislative body which creates the fiction. Under Section 115JB the deeming fiction is for equating the book profits with the total income of the assessee and for determining the tax payable by the assessee on such total income at the rate as provided therein. For the purposes of computing the book profits every assessee has to maintain its profit and loss account in accordance with the provisions of Parts II and III of Schedule VI of the Companies Act 1956. The Assessing Officer has to accept the validity and correctness of an account duly certified in accordance with law and is not entitled to enquire into the correctness of the account maintained by the assessee. The Assessing Officer thereafter has the power to make increases and reductions from the net profits as maintained in the profit and loss account of the assessee in terms as provided in Explanation 1 to Section 115JB. While the Assessing Officer does not have the jurisdiction to scrutinize once again or to go behind the net profit shown in the profit and loss account, he is well within his jurisdiction in effecting the increases and reductions as warranted by Explanation 1 to Section 115JB. As a matter of fact, the Assessing Officer is duty bound to carry out the legislative intent by effecting the increases on the one hand and the reductions on the other as provided in Explanation 1. For the purposes of clause (iv) of Explanation 1, the extent of the reduction in respect of the deduction available under Section 80HHC has to be computed strictly in accordance with the provisions of Section 80HHC. We have not accepted the submission of the assessee that in applying the formula under subsection (3) of Section 80HHC, the expression profits of the business would need to be substituted by book profits. Our conclusion is that the acceptance of the submission would amount to rewriting a legislative provision which would not be permissible to the Court. | 1[ds]To accept the submission of the assessee, would be to rewrite the provisions of subsection (3) of Section 80HHC which is plainly impermissible for the Court to do. That it would be impermissible for the Court to carry out such an exercise is fortified by the fundamental principle that the object of Section 115JB was not to confer an additional benefit upon assessees governed by the MAT regime. What clause (iv) of the Explanation to Section 115JB provides is that the profits which would be eligible for deduction under Section 80HHC would be reduced from the net profits as part of the exercise of computing the book profits for the purposes of the section. The entirety of the profits which are eligible for deduction under Section 80HHC have to be computed and then reduced from the net profits as reflected in the books of account of thewe have noted earlier, the language of clause (iii) of the Explanation to Section 115J was different from the provision which Parliament subsequently made in clause (viii) of the Explanation to Section 115JA and now in clause (iv) of the Explanation to Section 115JB. Clause (iii) of the Explanation to Section 115J made a reference to the amounts attributable to the business, the profits from which are eligible for deduction under Section 80HHC. This was, however, made subject to the condition (the condition being evident by the use of the words so, however) that such amounts would be computed in the manner specified inter alia in subsections (3) and (3A) of Section 80HHC. It was in the context of Section 115J as it then stood, that the circular dated 4 May 1990 provided that Section 115J as originally drafted had taken away the 100 percent exemption which was to be allowed in respect of export profits and watered down the encouragement which was to be provided to such foreign exchange earning activities. The circular states that since the intention was that 100 percent of such profits should be exempt, it was decided that the profits which are exempt under Sections 80HHC and 80HHD, should be excluded from the purview of Section 115J. While construing the provisions of clause (iii) of the Explanation, the circular provided that the net profit to be excluded shall be computed in the same manner as provided for in subsections (3) and (3A) of Section 80HHC. The circular states that the profits exempt under Sections 80HHC and 80HHD have been excluded from the purview of section 115J.The subsequent circular dated 21 February 1994 notes that a doubt had been expressed as to whether the amount quantified under Section 80HHC(3) or 3(A) itself should be deducted under Explanation (iii) to Section 115J or whether only the manner of computation specified in those sections should be followed to quantify the amount of deduction. According to the circular, it is only the manner of computation specified in Section 80HHC (3) or (3A) and not the amounts themselves that should be imported into Explanation (iii) under Section 115J. The circular then provided for the method by which the deduction was to be effected.Both these circulars were in the context of Section 115J, the provisions of which were materially altered by Parliament while enacting clause (viii) of the Explanation to Section 115JA and subsequently clause (iv) of Explanation 1 to Section 115JB. In these circumstances, the provisions made in these two circulars cannot control the meaning to be ascribed to clause (iv) of the Explanation to Section 115JB.Section 115JB provides for a deeming fiction. The deeming fiction is brought into existence where in the case of a company which is an assessee the income tax payable on the total income as computed under the Act in respect of a previous year falling within the purview of the Section is less than a stipulated percentage of its book profits. The deeming fiction is that in such a case the book profit shall be deemed to be the total income of the assessee and the tax payable by the assessee on such total income shall be the amount of the income tax at the rate stipulated in sub section (1). A deeming fiction created by the law has to be given full effect. Equally, the deeming fiction has to be applied within the parameters envisaged by the legislative body which creates the fiction. Under Section 115JB the deeming fiction is for equating the book profits with the total income of the assessee and for determining the tax payable by the assessee on such total income at the rate as provided therein. For the purposes of computing the book profits every assessee has to maintain its profit and loss account in accordance with the provisions of Parts II and III of Schedule VI of the Companies Act 1956. The Assessing Officer has to accept the validity and correctness of an account duly certified in accordance with law and is not entitled to enquire into the correctness of the account maintained by the assessee. The Assessing Officer thereafter has the power to make increases and reductions from the net profits as maintained in the profit and loss account of the assessee in terms as provided in Explanation 1 to Section 115JB. While the Assessing Officer does not have the jurisdiction to scrutinize once again or to go behind the net profit shown in the profit and loss account, he is well within his jurisdiction in effecting the increases and reductions as warranted by Explanation 1 to Section 115JB. As a matter of fact, the Assessing Officer is duty bound to carry out the legislative intent by effecting the increases on the one hand and the reductions on the other as provided in Explanation 1. For the purposes of clause (iv) of Explanation 1, the extent of the reduction in respect of the deduction available under Section 80HHC has to be computed strictly in accordance with the provisions of Section 80HHC. We have not accepted the submission of the assessee that in applying the formula under subsection (3) of Section 80HHC, the expression profits of the business would need to be substituted by book profits. Our conclusion is that the acceptance of the submission would amount to rewriting a legislative provision which would not be permissible to the Court. | 1 | 6,423 | 1,148 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
of Section 80HHC are made applicable not only for the purposes of computation, but it is the amount of profits eligible for deduction under Section 80HHC and as computed under subsections (3) or (3A), as the case may be, that have to be reduced from the net profits of the assessee. A subsequent judgment of the Madras High Court in Commissioner of Income Tax v. Rajanikant Schnelder and Associates Pvt. Ltd. (2008) 302 ITR 22 (Mad) similarly construed the provisions of clause (iii) of the Explanation to Section 115J. The question before the Madras High Court was whether the Tribunal was right in holding that an assessee having no profit from export was eligible for deduction under Section 80HHC on its book profits under Section 115J. The Division Bench of the Madras High Court held that the Assessing Officer was not entitled to touch the profit and loss account prepared by the assessee and the book profits so arrived at should be the basis for taxation. Since the case before the Madras High Court related to the construction of Section 115J, it is not necessary to dwell on this aspect of the case any further. Though the Madras High Court has observed that the provisions of Section 115J and 115JA are similar, that is in the context of the applicability of the principles laid down in Apollo Tyres (supra) as regards the account prepared by the assessee under Parts II and III of Schedule VI to the Companies Act 1956. From the judgment of the Madras High Court it appears that though the question that was framed referred to Section 115J, there is some discussion in the judgment of the provision of Section 115JA. 28. In Karnataka Small Scale Industries Development Corporation Ltd. v. Commissioner of Income Tax (2002) 258 ITR 770 the Supreme Court held that Section 115J does not create any right nor does it serve to allow all the deductions taken into consideration for determining whether the total income should be quantified under Section 115J (1), to be carried forward under subsection (2) of Section 115J. The provision, held the Supreme Court, allowed only the unabsorbed losses, depreciation, investment allowance etc., which otherwise could have been carried forward, to be carried forward. 29. A Division Bench of this Court in Commissioner of Income Tax v. Ajanta Pharma Ltd. (2009) 23 DTR (Bom) 1 held that a company governed by the MAT regime is entitled to the same deduction of export profits under Section 80HHC as any other company involved in export and that consequently an assessee governed by the MAT regime would be subject to the restriction contained in subsection (1B) of Section 80HHC. The Division Bench held as follows :Sec. 115JB also uses the expression profits eligible for deduction. There really can be no difficulty in understanding what this means. Only those profits which are eligible and computed in terms of subs. (3) or (3A) and quantified in terms of subs. (1B). The computation whether under subs. (3) or (3A) is for the purpose of subs. (1) or (1A). Sec.80HHC (1) permits a deduction to the extent of profits referred to in subs. (1B). The ambit of deeming fiction30. Section 115JB provides for a deeming fiction. The deeming fiction is brought into existence where in the case of a company which is an assessee the income tax payable on the total income as computed under the Act in respect of a previous year falling within the purview of the Section is less than a stipulated percentage of its book profits. The deeming fiction is that in such a case the book profit shall be deemed to be the total income of the assessee and the tax payable by the assessee on such total income shall be the amount of the income tax at the rate stipulated in sub section (1). A deeming fiction created by the law has to be given full effect. Equally, the deeming fiction has to be applied within the parameters envisaged by the legislative body which creates the fiction. Under Section 115JB the deeming fiction is for equating the book profits with the total income of the assessee and for determining the tax payable by the assessee on such total income at the rate as provided therein. For the purposes of computing the book profits every assessee has to maintain its profit and loss account in accordance with the provisions of Parts II and III of Schedule VI of the Companies Act 1956. The Assessing Officer has to accept the validity and correctness of an account duly certified in accordance with law and is not entitled to enquire into the correctness of the account maintained by the assessee. The Assessing Officer thereafter has the power to make increases and reductions from the net profits as maintained in the profit and loss account of the assessee in terms as provided in Explanation 1 to Section 115JB. While the Assessing Officer does not have the jurisdiction to scrutinize once again or to go behind the net profit shown in the profit and loss account, he is well within his jurisdiction in effecting the increases and reductions as warranted by Explanation 1 to Section 115JB. As a matter of fact, the Assessing Officer is duty bound to carry out the legislative intent by effecting the increases on the one hand and the reductions on the other as provided in Explanation 1. For the purposes of clause (iv) of Explanation 1, the extent of the reduction in respect of the deduction available under Section 80HHC has to be computed strictly in accordance with the provisions of Section 80HHC. We have not accepted the submission of the assessee that in applying the formula under subsection (3) of Section 80HHC, the expression profits of the business would need to be substituted by book profits. Our conclusion is that the acceptance of the submission would amount to rewriting a legislative provision which would not be permissible to the Court.
### Response:
1
### Explanation:
the object of Section 115JB was not to confer an additional benefit upon assessees governed by the MAT regime. What clause (iv) of the Explanation to Section 115JB provides is that the profits which would be eligible for deduction under Section 80HHC would be reduced from the net profits as part of the exercise of computing the book profits for the purposes of the section. The entirety of the profits which are eligible for deduction under Section 80HHC have to be computed and then reduced from the net profits as reflected in the books of account of thewe have noted earlier, the language of clause (iii) of the Explanation to Section 115J was different from the provision which Parliament subsequently made in clause (viii) of the Explanation to Section 115JA and now in clause (iv) of the Explanation to Section 115JB. Clause (iii) of the Explanation to Section 115J made a reference to the amounts attributable to the business, the profits from which are eligible for deduction under Section 80HHC. This was, however, made subject to the condition (the condition being evident by the use of the words so, however) that such amounts would be computed in the manner specified inter alia in subsections (3) and (3A) of Section 80HHC. It was in the context of Section 115J as it then stood, that the circular dated 4 May 1990 provided that Section 115J as originally drafted had taken away the 100 percent exemption which was to be allowed in respect of export profits and watered down the encouragement which was to be provided to such foreign exchange earning activities. The circular states that since the intention was that 100 percent of such profits should be exempt, it was decided that the profits which are exempt under Sections 80HHC and 80HHD, should be excluded from the purview of Section 115J. While construing the provisions of clause (iii) of the Explanation, the circular provided that the net profit to be excluded shall be computed in the same manner as provided for in subsections (3) and (3A) of Section 80HHC. The circular states that the profits exempt under Sections 80HHC and 80HHD have been excluded from the purview of section 115J.The subsequent circular dated 21 February 1994 notes that a doubt had been expressed as to whether the amount quantified under Section 80HHC(3) or 3(A) itself should be deducted under Explanation (iii) to Section 115J or whether only the manner of computation specified in those sections should be followed to quantify the amount of deduction. According to the circular, it is only the manner of computation specified in Section 80HHC (3) or (3A) and not the amounts themselves that should be imported into Explanation (iii) under Section 115J. The circular then provided for the method by which the deduction was to be effected.Both these circulars were in the context of Section 115J, the provisions of which were materially altered by Parliament while enacting clause (viii) of the Explanation to Section 115JA and subsequently clause (iv) of Explanation 1 to Section 115JB. In these circumstances, the provisions made in these two circulars cannot control the meaning to be ascribed to clause (iv) of the Explanation to Section 115JB.Section 115JB provides for a deeming fiction. The deeming fiction is brought into existence where in the case of a company which is an assessee the income tax payable on the total income as computed under the Act in respect of a previous year falling within the purview of the Section is less than a stipulated percentage of its book profits. The deeming fiction is that in such a case the book profit shall be deemed to be the total income of the assessee and the tax payable by the assessee on such total income shall be the amount of the income tax at the rate stipulated in sub section (1). A deeming fiction created by the law has to be given full effect. Equally, the deeming fiction has to be applied within the parameters envisaged by the legislative body which creates the fiction. Under Section 115JB the deeming fiction is for equating the book profits with the total income of the assessee and for determining the tax payable by the assessee on such total income at the rate as provided therein. For the purposes of computing the book profits every assessee has to maintain its profit and loss account in accordance with the provisions of Parts II and III of Schedule VI of the Companies Act 1956. The Assessing Officer has to accept the validity and correctness of an account duly certified in accordance with law and is not entitled to enquire into the correctness of the account maintained by the assessee. The Assessing Officer thereafter has the power to make increases and reductions from the net profits as maintained in the profit and loss account of the assessee in terms as provided in Explanation 1 to Section 115JB. While the Assessing Officer does not have the jurisdiction to scrutinize once again or to go behind the net profit shown in the profit and loss account, he is well within his jurisdiction in effecting the increases and reductions as warranted by Explanation 1 to Section 115JB. As a matter of fact, the Assessing Officer is duty bound to carry out the legislative intent by effecting the increases on the one hand and the reductions on the other as provided in Explanation 1. For the purposes of clause (iv) of Explanation 1, the extent of the reduction in respect of the deduction available under Section 80HHC has to be computed strictly in accordance with the provisions of Section 80HHC. We have not accepted the submission of the assessee that in applying the formula under subsection (3) of Section 80HHC, the expression profits of the business would need to be substituted by book profits. Our conclusion is that the acceptance of the submission would amount to rewriting a legislative provision which would not be permissible to the Court.
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Raj Kumar Singh Hukam Chandji Vs. Commissioner of Income Tax, M.P | partner. He was found to be a man of rich experience in the line of business which the two firms were carrying on. Clause (8) of the partnership deed of the first, firm provided that Shah who has been managing the business of the firm shall continue to act as managing partner for conducting the said business free from any interference of the other partners with power to manage, direct, appoint and/ or remove any one of the employees and /or do all other things including the right to draw cheques, to make, deliver and accept documents either legal or commercial in respect of the partnership business. Clause (9) provided that Shah shall continue to be the managing partner for his lifetime or his retirement whichever is earlier. In the deed of the second firm Clause (14) provided for appointment of another partner, K. as the managing partner and gave the managing partner power similar to those in the deed of the other firm. Clause (15) provided for Shahs appointment after Ks retirement and Shah was appointed after his retirement. No other partner was paid any salary in this firm. On these facts thin Court held that there was no real or sufficient connection between the investment of the joint family funds and the remuneration paid to Shah and that remuneration was not earned on account of any detriment to the joint family assets and the remuneration received by Shah as the managing partner of the two firms was not assessable as the income of his Hindu undivided family. 16. At first sight there appears to be conflict between the two lines of decisions namely Kalu Babus case, 37 ITR 123 = (AIR 1959 SC 1289 ) and Mathura Prasads case, (1966) 60 ITR 428 (SC); two Dhanwateys cases, 68 ITR 365 = (AIR 1968 SC 683 ) and 68 ITR 385 = (AIR 1968 SC 682 ) and Krishna Iyers case. 73 ITR 539 , Palaniappa Chettiars case, 68 ITR 221 = (AIR 1968 SC 678 ), Dakappas case, (1969) 72 ITR 192 (SC) and D. C. Shahs case, 73 ITR 692 = (AIR 1969 SC 927 ) on the other. The line that demarcates these two lines of decisions is not very distinct but on a closer examination that line can be located. In order to find out whether a given income is that of the person to whom it was purported to have been given or that of his family, several tests have been enumerated in the aforementioned decisions but none of them excepting Kalu Babus case, 37 ITR 123 = (AIR 1959 SC 1289 ) makes reference to the observations of Lord Sumner in Gokal Chands case, 48 Ind App 162 = (AIR 1921 PC 35) that"in considering whether gains are partible, there is no valid distinction between the direct me of the joint family funds and a use which qualifies the member to make the gains by his own efforts." We think that that principle is no more valid. The other tests enumerated are:(1) whether the Income received by a coparcener of a Hindu undivided family as remuneration had any real connection with the investment of the joint family funds; (2) whether the income received was directly related to any utilization of family assets; (3) whether the family had suffered any detriment in the process of realization of the income and (4) whether the income was received with the aid and assistance of the family funds; 17. In our opinion from these subsidiary principles, the broader principle that emerges is whether the remuneration received by the coparcener in substance though not in form was but one of the modes of return made to the family because of the investment of the family funds in the business or whether it was a compensation made for the services rendered by the individual coparcener. If it is the former, it is an income of the Hindu undivided family but if it is the latter then it is the income of the individual coparcener. If the income was essentially earned as a result of the funds invested the fact that a coparcener has rendered ,some service would not change the character of the receipt. But if on the other hand it is essentially a remuneration for the services rendered by a coparcener, the circumstance that his services were availed of because of the reason that he was a member of the family which had invested funds in that business or that he had obtained the qualification shares from out of the family funds would not make the receipt, the income of the Hindu undivided family. Applying the tests enumerated above to the facts found by the tribunal in the present case, there is hardly any room to doubt that the income in question was the individual income of Rajkumar. He did not become the managing director of the firm for the mere reason that his family had purchased considerable shares in the firm. He was elected as a managing director by the board of directors. The tribunal has found that he received his salary for his personal services. There is no material to hold that he was elected managing director on behalf of the family. In the past the salary received by him was assessed as his individual income. The same was the case as regards the salary received by the other directors. The tribunal has found that he was not appointed as managing director as a result of any outlay or expenditure of or detriment to the family property. It has further found that the managing directorship was an employment of personal responsibility and ability. In these circumstances we agree with the conclusions reached by the tribunal that the income in question cannot be treated as the income of the assessee. For these reasons we are unable to agree with the High Court that the income in question can be held to be the income of the assessee. | 1[ds]16. At first sight there appears to be conflict between the two lines of decisions namely Kalu Babus case, 37 ITR 123 = (AIR 1959 SC 1289 ) and Mathura Prasads case, (1966) 60 ITR 428 (SC); two Dhanwateys cases, 68 ITR 365 = (AIR 1968 SC 683 ) and 68 ITR 385 = (AIR 1968 SC 682 ) and Krishna Iyers case. 73 ITR 539 , Palaniappa Chettiars case, 68 ITR 221 = (AIR 1968 SC 678 ), Dakappas case, (1969) 72 ITR 192 (SC) and D. C. Shahs case, 73 ITR 692 = (AIR 1969 SC 927 ) on the other. The line that demarcates these two lines of decisions is not very distinct but on a closer examination that line can be located. In order to find out whether a given income is that of the person to whom it was purported to have been given or that of his family, several tests have been enumerated in the aforementioned decisions but none of them excepting Kalu Babus case, 37 ITR 123 = (AIR 1959 SC 1289 ) makes reference to the observations of Lord Sumner in Gokal Chands case, 48 Ind App 162 = (AIR 1921 PC 35) that"in considering whether gains are partible, there is no valid distinction between the direct me of the joint family funds and a use which qualifies the member to make the gains by his own efforts."We think that that principle is no more valid. The other tests enumerated are:(1) whether the Income received by a coparcener of a Hindu undivided family as remuneration had any real connection with the investment of the joint family funds;(2) whether the income received was directly related to any utilization of family assets;(3) whether the family had suffered any detriment in the process of realization of the income and(4) whether the income was received with the aid and assistance of the family funds;17. In our opinion from these subsidiary principles, the broader principle that emerges is whether the remuneration received by the coparcener in substance though not in form was but one of the modes of return made to the family because of the investment of the family funds in the business or whether it was a compensation made for the services rendered by the individual coparcener. If it is the former, it is an income of the Hindu undivided family but if it is the latter then it is the income of the individual coparcener. If the income was essentially earned as a result of the funds invested the fact that a coparcener has rendered ,some service would not change the character of the receipt. But if on the other hand it is essentially a remuneration for the services rendered by a coparcener, the circumstance that his services were availed of because of the reason that he was a member of the family which had invested funds in that business or that he had obtained the qualification shares from out of the family funds would not make the receipt, the income of the Hindu undivided family. Applying the tests enumerated above to the facts found by the tribunal in the present case, there is hardly any room to doubt that the income in question was the individual income of Rajkumar. He did not become the managing director of the firm for the mere reason that his family had purchased considerable shares in the firm. He was elected as a managing director by the board of directors. The tribunal has found that he received his salary for his personal services. There is no material to hold that he was elected managing director on behalf of the family. In the past the salary received by him was assessed as his individual income. The same was the case as regards the salary received by the other directors. The tribunal has found that he was not appointed as managing director as a result of any outlay or expenditure of or detriment to the family property. It has further found that the managing directorship was an employment of personal responsibility and ability. In these circumstances we agree with the conclusions reached by the tribunal that the income in question cannot be treated as the income of the assessee. For these reasons we are unable to agree with the High Court that the income in question can be held to be the income of the assessee. | 1 | 5,509 | 818 | ### Instruction:
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partner. He was found to be a man of rich experience in the line of business which the two firms were carrying on. Clause (8) of the partnership deed of the first, firm provided that Shah who has been managing the business of the firm shall continue to act as managing partner for conducting the said business free from any interference of the other partners with power to manage, direct, appoint and/ or remove any one of the employees and /or do all other things including the right to draw cheques, to make, deliver and accept documents either legal or commercial in respect of the partnership business. Clause (9) provided that Shah shall continue to be the managing partner for his lifetime or his retirement whichever is earlier. In the deed of the second firm Clause (14) provided for appointment of another partner, K. as the managing partner and gave the managing partner power similar to those in the deed of the other firm. Clause (15) provided for Shahs appointment after Ks retirement and Shah was appointed after his retirement. No other partner was paid any salary in this firm. On these facts thin Court held that there was no real or sufficient connection between the investment of the joint family funds and the remuneration paid to Shah and that remuneration was not earned on account of any detriment to the joint family assets and the remuneration received by Shah as the managing partner of the two firms was not assessable as the income of his Hindu undivided family. 16. At first sight there appears to be conflict between the two lines of decisions namely Kalu Babus case, 37 ITR 123 = (AIR 1959 SC 1289 ) and Mathura Prasads case, (1966) 60 ITR 428 (SC); two Dhanwateys cases, 68 ITR 365 = (AIR 1968 SC 683 ) and 68 ITR 385 = (AIR 1968 SC 682 ) and Krishna Iyers case. 73 ITR 539 , Palaniappa Chettiars case, 68 ITR 221 = (AIR 1968 SC 678 ), Dakappas case, (1969) 72 ITR 192 (SC) and D. C. Shahs case, 73 ITR 692 = (AIR 1969 SC 927 ) on the other. The line that demarcates these two lines of decisions is not very distinct but on a closer examination that line can be located. In order to find out whether a given income is that of the person to whom it was purported to have been given or that of his family, several tests have been enumerated in the aforementioned decisions but none of them excepting Kalu Babus case, 37 ITR 123 = (AIR 1959 SC 1289 ) makes reference to the observations of Lord Sumner in Gokal Chands case, 48 Ind App 162 = (AIR 1921 PC 35) that"in considering whether gains are partible, there is no valid distinction between the direct me of the joint family funds and a use which qualifies the member to make the gains by his own efforts." We think that that principle is no more valid. The other tests enumerated are:(1) whether the Income received by a coparcener of a Hindu undivided family as remuneration had any real connection with the investment of the joint family funds; (2) whether the income received was directly related to any utilization of family assets; (3) whether the family had suffered any detriment in the process of realization of the income and (4) whether the income was received with the aid and assistance of the family funds; 17. In our opinion from these subsidiary principles, the broader principle that emerges is whether the remuneration received by the coparcener in substance though not in form was but one of the modes of return made to the family because of the investment of the family funds in the business or whether it was a compensation made for the services rendered by the individual coparcener. If it is the former, it is an income of the Hindu undivided family but if it is the latter then it is the income of the individual coparcener. If the income was essentially earned as a result of the funds invested the fact that a coparcener has rendered ,some service would not change the character of the receipt. But if on the other hand it is essentially a remuneration for the services rendered by a coparcener, the circumstance that his services were availed of because of the reason that he was a member of the family which had invested funds in that business or that he had obtained the qualification shares from out of the family funds would not make the receipt, the income of the Hindu undivided family. Applying the tests enumerated above to the facts found by the tribunal in the present case, there is hardly any room to doubt that the income in question was the individual income of Rajkumar. He did not become the managing director of the firm for the mere reason that his family had purchased considerable shares in the firm. He was elected as a managing director by the board of directors. The tribunal has found that he received his salary for his personal services. There is no material to hold that he was elected managing director on behalf of the family. In the past the salary received by him was assessed as his individual income. The same was the case as regards the salary received by the other directors. The tribunal has found that he was not appointed as managing director as a result of any outlay or expenditure of or detriment to the family property. It has further found that the managing directorship was an employment of personal responsibility and ability. In these circumstances we agree with the conclusions reached by the tribunal that the income in question cannot be treated as the income of the assessee. For these reasons we are unable to agree with the High Court that the income in question can be held to be the income of the assessee.
### Response:
1
### Explanation:
16. At first sight there appears to be conflict between the two lines of decisions namely Kalu Babus case, 37 ITR 123 = (AIR 1959 SC 1289 ) and Mathura Prasads case, (1966) 60 ITR 428 (SC); two Dhanwateys cases, 68 ITR 365 = (AIR 1968 SC 683 ) and 68 ITR 385 = (AIR 1968 SC 682 ) and Krishna Iyers case. 73 ITR 539 , Palaniappa Chettiars case, 68 ITR 221 = (AIR 1968 SC 678 ), Dakappas case, (1969) 72 ITR 192 (SC) and D. C. Shahs case, 73 ITR 692 = (AIR 1969 SC 927 ) on the other. The line that demarcates these two lines of decisions is not very distinct but on a closer examination that line can be located. In order to find out whether a given income is that of the person to whom it was purported to have been given or that of his family, several tests have been enumerated in the aforementioned decisions but none of them excepting Kalu Babus case, 37 ITR 123 = (AIR 1959 SC 1289 ) makes reference to the observations of Lord Sumner in Gokal Chands case, 48 Ind App 162 = (AIR 1921 PC 35) that"in considering whether gains are partible, there is no valid distinction between the direct me of the joint family funds and a use which qualifies the member to make the gains by his own efforts."We think that that principle is no more valid. The other tests enumerated are:(1) whether the Income received by a coparcener of a Hindu undivided family as remuneration had any real connection with the investment of the joint family funds;(2) whether the income received was directly related to any utilization of family assets;(3) whether the family had suffered any detriment in the process of realization of the income and(4) whether the income was received with the aid and assistance of the family funds;17. In our opinion from these subsidiary principles, the broader principle that emerges is whether the remuneration received by the coparcener in substance though not in form was but one of the modes of return made to the family because of the investment of the family funds in the business or whether it was a compensation made for the services rendered by the individual coparcener. If it is the former, it is an income of the Hindu undivided family but if it is the latter then it is the income of the individual coparcener. If the income was essentially earned as a result of the funds invested the fact that a coparcener has rendered ,some service would not change the character of the receipt. But if on the other hand it is essentially a remuneration for the services rendered by a coparcener, the circumstance that his services were availed of because of the reason that he was a member of the family which had invested funds in that business or that he had obtained the qualification shares from out of the family funds would not make the receipt, the income of the Hindu undivided family. Applying the tests enumerated above to the facts found by the tribunal in the present case, there is hardly any room to doubt that the income in question was the individual income of Rajkumar. He did not become the managing director of the firm for the mere reason that his family had purchased considerable shares in the firm. He was elected as a managing director by the board of directors. The tribunal has found that he received his salary for his personal services. There is no material to hold that he was elected managing director on behalf of the family. In the past the salary received by him was assessed as his individual income. The same was the case as regards the salary received by the other directors. The tribunal has found that he was not appointed as managing director as a result of any outlay or expenditure of or detriment to the family property. It has further found that the managing directorship was an employment of personal responsibility and ability. In these circumstances we agree with the conclusions reached by the tribunal that the income in question cannot be treated as the income of the assessee. For these reasons we are unable to agree with the High Court that the income in question can be held to be the income of the assessee.
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M/s. National Tractors Vs. Commissioner of Commercial Taxes, Bangalore | the Deputy Commissioner of Commercial Taxes held that the last purchases had been made by the State Trading Corporation and not by the assessee and it was, therefore, the former that was liable to pay the tax. The Commissioner of Commercial Taxes revised suo motu the order of the Deputy Commissioner and restored that of the assessing authority. The assessee filed an appeal in case of each assessment to the High Court under Section 24 (1) of the Act. 3. The approach of the High Court was on these lines. There were two purchases, one by the the assessee from the mine owner and the other by the State Trading Corporation from it. If the purchase by the State Trading Corporation from the assessee was for the purpose of export then the former would be liable but if the purchase by the State Trading Corporation. was one in the course of export of goods out of the territories of India the last purchase would be that of the assessee from the mine owners and it would be the assessee on whom the incidence of tax would fall. The High Court relied largely on a decision of this Court in B. K. Wadeyar v. M/s. Daulatram Rameshwarlal, (1961) 1 SCR 924 = (AIR 1961 SC 311 ) and, after noticing Article 286 of the Constitution, as amended by the Constitution Sixth Amendment Act 1956 and Section 5 of the Central Sales Tax Act 1956 as also the conditions and nature of the contracts entered into between the parties, found that the transactions between the assessee and the State Trading Corporation were in the course of export and therefore the Corporation had no liability to pay the tax. Reliance was placed on the presumption in the case of F. O. B. contracts that property in the goods passed when they were put on board the ship in the absence of special circumstances pointing to the passing of the property at some other point of time. The following portion from the judgment of the High Court may be reproduced: "The only other circumstances specially relied upon by the appellant wire that at an earlier point of time when the goods were being transported by rail, the railway documents were made out in the name of STC and that the appellant had been enabled to borrow moneys from banks on the hypothecation or security of the goods themselves. The former circumstance, in our opinion, cannot be regarded as conclusive or decisive because even after the goods were discharged at the, railway station at Hubli the responsibility of transporting them by road to Karwar port and loading them in the ship beyond the customs barrier still remained with the appellant in terms of the contract between him and the STC. The fact that the appellant was enabled to hypothecate the goods is, if anything, a circumstance more against the appellants contention than in favour of it. The certification by the STC, on the strength of which such hypothecation of goods was made possible, does not indicate anything more than that wherever the assistance of the STC was necessary, it was made available to the appellant under the terms of the contract, for example, in the matter of arranging for railway wagons for transport from Hospet to Hubli. In any event these circumstances are quite equivocal and never so firm as to displace the normal presumption attaching to F. O. B. contracts to the effect that the title in the goods covered by such contracts passes to the buyer only when the goods are put on board ships." 4. In our judgment the crucial point that fell to be determined was whether the property passed to the State Trading Corporation pursuant to contracts entered into between the parties within the State of Mysore? If the property did not so pass to the Corporation the last purchaser would be the assessee. Admittedly the contracts entered into between the parties were F. O. B, and the normal rule in such contracts is that the property is intended to pass and does pass on the shipment of the goods. In other words in the absence of special agreements the property in the goods does not pass in case of such contracts until the goods are actually put on board the ship.The High Court has enumerated with care all the material conditions which were to be found in the contracts as also the manner in which the transportation of the goods took place apart from the payment of price and the arrangement about obtaining of advances by the assessee by hypothecation of goods. We are unable to find any infirmity in the approach and reasoning of the High Court on the question of passing of property in the goods in the light of the presumption which arises in the case of F. O. B. contracts. We would accordingly affirm the conclusion of the High Court that the assessee was the last purchaser of the iron ore within the State and was thus liable to pay tax in accordance with the provisions of the Act. 5. In one of the appeals a minor question arose relating to the imposition of tax in respect of sale of tyres and tubes by the assessee to the National Transport Hubli. It was argued before the High Court that the assessee was not a regular dealer in tyres and tubes and that there was no profit motive in selling those articles. The case of the assessee was that the supply of these tyres and tubes had been made to the transport contractors to ensure that the terms of the assessees contracts with the State Trading Corporation were fully and properly complied with.Before us the learned counsel for the State has quite rightly and properly agreed, in view of the comparatively small amount of tax involved, that the assessee would not be called upon to pay the tax on the sale of those tyres and tubes. | 0[ds]We are unable to find any infirmity in the approach and reasoning of the High Court on the question of passing of property in the goods in the light of the presumption which arises in the case of F. O. B. contracts. We would accordingly affirm the conclusion of the High Court that the assessee was the last purchaser of the iron ore within the State and was thus liable to pay tax in accordance with the provisions of the Act5. In one of the appeals a minor question arose relating to the imposition of tax in respect of sale of tyres and tubes by the assessee to the National Transport Hubli. It was argued before the High Court that the assessee was not a regular dealer in tyres and tubes and that there was no profit motive in selling those articles. The case of the assessee was that the supply of these tyres and tubes had been made to the transport contractors to ensure that the terms of the assessees contracts with the State Trading Corporation were fully and properly complied with.Before us the learned counsel for the State has quite rightly and properly agreed, in view of the comparatively small amount of tax involved, that the assessee would not be called upon to pay the tax on the sale of those tyres and tubes. | 0 | 1,529 | 238 | ### Instruction:
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the Deputy Commissioner of Commercial Taxes held that the last purchases had been made by the State Trading Corporation and not by the assessee and it was, therefore, the former that was liable to pay the tax. The Commissioner of Commercial Taxes revised suo motu the order of the Deputy Commissioner and restored that of the assessing authority. The assessee filed an appeal in case of each assessment to the High Court under Section 24 (1) of the Act. 3. The approach of the High Court was on these lines. There were two purchases, one by the the assessee from the mine owner and the other by the State Trading Corporation from it. If the purchase by the State Trading Corporation from the assessee was for the purpose of export then the former would be liable but if the purchase by the State Trading Corporation. was one in the course of export of goods out of the territories of India the last purchase would be that of the assessee from the mine owners and it would be the assessee on whom the incidence of tax would fall. The High Court relied largely on a decision of this Court in B. K. Wadeyar v. M/s. Daulatram Rameshwarlal, (1961) 1 SCR 924 = (AIR 1961 SC 311 ) and, after noticing Article 286 of the Constitution, as amended by the Constitution Sixth Amendment Act 1956 and Section 5 of the Central Sales Tax Act 1956 as also the conditions and nature of the contracts entered into between the parties, found that the transactions between the assessee and the State Trading Corporation were in the course of export and therefore the Corporation had no liability to pay the tax. Reliance was placed on the presumption in the case of F. O. B. contracts that property in the goods passed when they were put on board the ship in the absence of special circumstances pointing to the passing of the property at some other point of time. The following portion from the judgment of the High Court may be reproduced: "The only other circumstances specially relied upon by the appellant wire that at an earlier point of time when the goods were being transported by rail, the railway documents were made out in the name of STC and that the appellant had been enabled to borrow moneys from banks on the hypothecation or security of the goods themselves. The former circumstance, in our opinion, cannot be regarded as conclusive or decisive because even after the goods were discharged at the, railway station at Hubli the responsibility of transporting them by road to Karwar port and loading them in the ship beyond the customs barrier still remained with the appellant in terms of the contract between him and the STC. The fact that the appellant was enabled to hypothecate the goods is, if anything, a circumstance more against the appellants contention than in favour of it. The certification by the STC, on the strength of which such hypothecation of goods was made possible, does not indicate anything more than that wherever the assistance of the STC was necessary, it was made available to the appellant under the terms of the contract, for example, in the matter of arranging for railway wagons for transport from Hospet to Hubli. In any event these circumstances are quite equivocal and never so firm as to displace the normal presumption attaching to F. O. B. contracts to the effect that the title in the goods covered by such contracts passes to the buyer only when the goods are put on board ships." 4. In our judgment the crucial point that fell to be determined was whether the property passed to the State Trading Corporation pursuant to contracts entered into between the parties within the State of Mysore? If the property did not so pass to the Corporation the last purchaser would be the assessee. Admittedly the contracts entered into between the parties were F. O. B, and the normal rule in such contracts is that the property is intended to pass and does pass on the shipment of the goods. In other words in the absence of special agreements the property in the goods does not pass in case of such contracts until the goods are actually put on board the ship.The High Court has enumerated with care all the material conditions which were to be found in the contracts as also the manner in which the transportation of the goods took place apart from the payment of price and the arrangement about obtaining of advances by the assessee by hypothecation of goods. We are unable to find any infirmity in the approach and reasoning of the High Court on the question of passing of property in the goods in the light of the presumption which arises in the case of F. O. B. contracts. We would accordingly affirm the conclusion of the High Court that the assessee was the last purchaser of the iron ore within the State and was thus liable to pay tax in accordance with the provisions of the Act. 5. In one of the appeals a minor question arose relating to the imposition of tax in respect of sale of tyres and tubes by the assessee to the National Transport Hubli. It was argued before the High Court that the assessee was not a regular dealer in tyres and tubes and that there was no profit motive in selling those articles. The case of the assessee was that the supply of these tyres and tubes had been made to the transport contractors to ensure that the terms of the assessees contracts with the State Trading Corporation were fully and properly complied with.Before us the learned counsel for the State has quite rightly and properly agreed, in view of the comparatively small amount of tax involved, that the assessee would not be called upon to pay the tax on the sale of those tyres and tubes.
### Response:
0
### Explanation:
We are unable to find any infirmity in the approach and reasoning of the High Court on the question of passing of property in the goods in the light of the presumption which arises in the case of F. O. B. contracts. We would accordingly affirm the conclusion of the High Court that the assessee was the last purchaser of the iron ore within the State and was thus liable to pay tax in accordance with the provisions of the Act5. In one of the appeals a minor question arose relating to the imposition of tax in respect of sale of tyres and tubes by the assessee to the National Transport Hubli. It was argued before the High Court that the assessee was not a regular dealer in tyres and tubes and that there was no profit motive in selling those articles. The case of the assessee was that the supply of these tyres and tubes had been made to the transport contractors to ensure that the terms of the assessees contracts with the State Trading Corporation were fully and properly complied with.Before us the learned counsel for the State has quite rightly and properly agreed, in view of the comparatively small amount of tax involved, that the assessee would not be called upon to pay the tax on the sale of those tyres and tubes.
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M.S. BHAVANI AND ANR. Vs. M.S. RAGHU NANDAN | a clear indication of the creation of an absolute bequest in her favour, while the use of non-mandatory words such as desire indicate that the testator did not wish to compel his wife to sell the suit property. He merely desired that his wife should endeavour to sell the property during her lifetime and divide the sale proceeds as she chose. 10.3 We also note that the High Court erred in observing that in the event that a sale was to be made by Nirmala Murthy, both the children would be entitled to a share in the sale proceeds. As mentioned supra, the testator intended to create an absolutely unfettered right in favour of his wife by virtue of the Will. Reading in other clauses that are merely expressive of his desire as compulsory dictates on such absolute ownership goes against the clear wording of the Will, and would amount to rewriting it. Thus, we do not find that there was any bequest made in favour of the children of the testator under the Will dated 07.06.1995. 10.4 In this regard, reliance sought to be placed by Respondent No. 1 on the decision in Kaivelikkal Ambunhi (supra), to argue that the subsequent bequest made in the latter part of the Will had to be given effect, is also misplaced, as the rule of last intention is only applicable when there is inconsistency in the bequests. We may note the following excerpt from the decision: 4. A Will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. This is regulated by the well-known maxim cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est which means that if in a Will there are two inconsistent provisions, the latter shall prevail over the earlier (See: Hammond, Re, Hammond v. Treharne [(1938) 3 All ER 308 : 54 TLR 903] ). …6. It may, however, be pointed out that this rule of interpretation can be invoked only if different clauses cannot be reconciled. (See: Rameshwar Bakhsh Singh v. Balraj Kuar [AIR 1935 PC 187 : 1935 All LJ 1133] ). (emphasis supplied) Here, there is no inconsistency in the clauses of the Will inasmuch as the house property was absolutely bequeathed to Nirmala Murthy and no inconsistent bequest has been made thereafter. As discussed supra, the part of the Will providing for the sale of the property during her lifetime and the distribution of the sale proceeds between the children cannot be treated as a bequest, as it was a mere desire expressed by the testator. 10.5 In any case, even if it is assumed that the latter clause went beyond a mere expression of desire and created a bequest in favour of the children of the testator (Appellant No. 1 and Respondent No. 1), the first clause creating an absolute right in favour of Nirmala Murthy shall prevail over such clause. In this regard, the following observations of this Court in Mauleshwar Mani (supra) are relevant: 11. From the decisions referred to above, the legal principle that emerges, inter alia, are: (1) where under a will, a testator has bequeathed his absolute interest in the property in favour of his wife, any subsequent bequest which is repugnant to the first bequeath would be invalid; and (2) where a testator has given a restricted or limited right in his property to his widow, it is open to the testator to bequeath the property after the death of his wife in the same will. 12. In view of the aforesaid principles that once the testator has given an absolute right and interest in his entire property to a devisee it is not open to the testator to further bequeath the same property in favour of the second set of persons in the same will, a testator cannot create successive legatees in his will. The object behind is that once an absolute right is vested in the first devisee the testator cannot change the line of succession of the first devisee. Where a testator having conferred an absolute right on anyone, the subsequent bequest for the same property in favour of other persons would be repugnant to the first bequest in the will and has to be held invalid. In the present case the testator Jamuna Prasad under the will had bequest his entire estate, movable and immovable property including the land under self- cultivation, house and groves etc. to his wife Smt Sona Devi and thereafter by subsequent bequest the testator gave the very same properties to nine sons of his daughters, which was not permissible… (emphasis supplied) Notably, these observations were reaffirmed by this Court in Madhuri Gosh (supra) as well. 10.6 Given that we find that an absolute right was given to Nirmala Murthy over the property, in view of the aforesaid decisions, any subsequent bequest sought in favour of the children of the testator cannot be given effect. Further, the reliance of Respondent No. 1 on the decision in Ramachandra Shenoy (supra) is misplaced inasmuch as the Clause in the Will in that case stated thus: 3.(c) All kinds of movable properties that shall be in my possession and authority at the time of my death i.e. all kinds of moveable properties inclusive of the amounts that shall be not from others and the cash – all these my eldest daughter Severina Sobina Coelho, shall after my death, enjoy and after her lifetime, her male children also shall enjoy permanently and with absolute interest. Clearly, the clauses in the Will in the present case are significantly different from the aforementioned clause, wherein the daughter was clearly given a life interest only. This is not the case with the right of Nirmala Murthy, which has been expressly stated to be absolute in nature. | 0[ds]A reading of the above portion of the Will dated 07.06.1995, clearly indicates that the testator sought to provide for the manner in which his wife Nirmala Murthy would have a right to the suit property and how she would deal with the same. In addition to this, he also sought to provide for the manner in which the property may be dealt with by his daughter and son, in the event that his wife did not sell the property during her lifetime. Notably, this second part is not attracted at all in the present case, as Nirmala Murthy sold the suit property during her lifetime9. Since the issue essentially turns on the interpretation of the Will, it would be useful to note certain principles that should be borne in mind while undertaking the construction of a will. At its very core, the exercise involves an endeavour to try and find out the intention of the testator. This intention has to be gathered primarily from the language of the will, reading the entire document as a whole, without indulging in any conjecture or speculation as to what the testator would have done had he been better informed or better advised. In construing the language of a will, the Courts may look to the nature and the grammatical meaning of the words used, and also consider surrounding circumstances such as the position of the testator, his family relationship, and other factors that may surface once the Court puts itself in the position of a person making the will [see Shyamal Kanti Guha (dead) through LRs v. Meena Bose, (2008) 8 SCC 115 ]10. Keeping in mind these principles and upon a close reading of the wording of the Will dated 07.06.1995, we find that the testator intended to give his wife, Nirmala Murthy (Respondent No. 2) absolute rights over the suit property, by making her the sole legal and rightful heir of all his immovable and movable properties10.1 By according Nirmala Murthy the right to sell, mortgage, and lease the house or even to bequeath it to anybody who takes care of her in her last days, it is clear that the testator intended to create an absolute interest in her favour, and to preclude his daughter and son (Appellant No. 1 and Respondent No. 1 respectively) from succeeding to the suit property. This is further supported by the clause stating that the decision of Nirmala Murthy in exercise of these rights would be supreme and the children would have no right to question or put an unjust claim against the same. To this extent, we agree with the finding of the High Court that Nirmala Murthy had an absolute right in the suit property and that the children were disinherited from the bequest10.2 However, we hasten to add here that such right vested with Nirmala Murthy was intended to be completely unfettered in nature. The contention raised by Respondent No. 1 that she only had a life interest in the property as the testator necessarily wanted a sale of the property, cannot be accepted. This is because the part of the Will where the testator states that the house should be sold and sale amount be divided among my daughter and my sonis preceded by the expression it is my desire. Juxtaposed with this, the bequest in favour of Nirmala Murthy is characterized by words such as my wife shall be sole legal and rightful heir over my immovable and movable property and she will have every right and authority to sell, mortgage and lease…. The assertive language used in favour of Nirmala Murthy is a clear indication of the creation of an absolute bequest in her favour, while the use of non-mandatory words such as desire indicate that the testator did not wish to compel his wife to sell the suit property. He merely desired that his wife should endeavour to sell the property during her lifetime and divide the sale proceeds as she chose10.3 We also note that the High Court erred in observing that in the event that a sale was to be made by Nirmala Murthy, both the children would be entitled to a share in the sale proceeds. As mentioned supra, the testator intended to create an absolutely unfettered right in favour of his wife by virtue of the Will. Reading in other clauses that are merely expressive of his desire as compulsory dictates on such absolute ownership goes against the clear wording of the Will, and would amount to rewriting it. Thus, we do not find that there was any bequest made in favour of the children of the testator under the Will dated 07.06.199510.4 In this regard, reliance sought to be placed by Respondent No. 1 on the decision in Kaivelikkal Ambunhi (supra), to argue that the subsequent bequest made in the latter part of the Will had to be given effect, is also misplaced, as the rule of last intention is only applicable when there is inconsistency in the bequestsHere, there is no inconsistency in the clauses of the Will inasmuch as the house property was absolutely bequeathed to Nirmala Murthy and no inconsistent bequest has been made thereafter. As discussed supra, the part of the Will providing for the sale of the property during her lifetime and the distribution of the sale proceeds between the children cannot be treated as a bequest, as it was a mere desire expressed by the testator10.6 Given that we find that an absolute right was given to Nirmala Murthy over the property, in view of the aforesaid decisions, any subsequent bequest sought in favour of the children of the testator cannot be given effect. Further, the reliance of Respondent No. 1 on the decision in Ramachandra Shenoy (supra) is misplaced inasmuch as the Clause in the Will in that case stated thus:3.(c) All kinds of movable properties that shall be in my possession and authority at the time of my death i.e. all kinds of moveable properties inclusive of the amounts that shall be not from others and the cash – all these my eldest daughter Severina Sobina Coelho, shall after my death, enjoy and after her lifetime, her male children also shall enjoy permanently and with absolute interestClearly, the clauses in the Will in the present case are significantly different from the aforementioned clause, wherein the daughter was clearly given a life interest only. This is not the case with the right of Nirmala Murthy, which has been expressly stated to be absolute in natureIn this regard, we note at the very outset that several observations have been made by the Trial Court and the High Court with respect to the circumstances in which the sale deed was executed, which cast an aspersion on its validity. However, we do not find the need to delve into this question as the same is beyond the scope of the suit filed by Respondent No. 1. Moreover, no prayer for setting aside the sale deed was raised by Nirmala Murthy either. Thus, we shall only confine ourselves to an examination of the sale deed vis-à-vis the Will dated 07.06.199512. Notably, the High Court found that the sale deed was not obtained by fraud or coercion on the part of the Appellants. However, it was held that such a deed was nevertheless unenforceable against Respondent No. 1, as it had been executed in a clandestine manner without his concurrence or consultation. The High Court found that a transparent process of sale of the property by Nirmala Murthy was integral to the intention of the testator, as he had clearly expressed a desire for his son to get a share of the sale consideration. Thus, it was held that the sale deed in question, having been executed without the knowledge of Respondent No. 1, was against such intention and therefore not binding on him. Upon perusing the record and the wording of the Will, we do not agree with such finding of the High Court12.1 As mentioned supra, the right vested under the Will in favour of Nirmala Murthy was an unfettered and absolute right. There is nothing in the wording of the Will which indicates that the testator necessarily required any subsequent sale, mortgage, or lease carried out by Nirmala Murthy to happen with the concurrence or consultation of his children. In fact, when one looks to the circumstances and the family relationship between the testator and his son, it becomes clear that their relations were strained. This is particularly reflected in Ex. P-17, a letter addressed by Nirmala Murthy to her son, Respondent No. 1 herein, where she specifically alludes to the ill treatment meted out by her son to his sister (Appellant No. 1) and the testator. In light of this, we find that a mere desire for the sale of the property and for the children to get a share in the proceeds therefrom cannot be read as a strict bar on the absolute right vested with Nirmala Murthy to deal with the property as she thought fit12.2 Thus, while it may have been desirable for Nirmala Murthy to carry out the sale transaction with the knowledge of Respondent No. 1, her failure to do so does not strike at the very root of the sale deed. In our considered opinion, interpreting the Will dated 07.06.1995 in a manner that places fetters on the power of Nirmala Murthy to sell the property by mandating consultation with her children would not be in consonance with the wording of the Will. Indeed, it effectively amounts to adding terms to the Will, which is impermissible12.3 In view of this, we find that the sale deed in question was executed in accordance with the Will dated 07.06.1995 and does not violate its terms. Therefore, Respondent No. 1 is also bound by the same and the finding of the High Court in this regard is liable to be set aside. The Appellants have acquired valid title over the suit property by virtue of the sale deed executed by Nirmala Murthy and are therefore entitled to possession of the same. | 0 | 3,893 | 1,845 | ### Instruction:
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a clear indication of the creation of an absolute bequest in her favour, while the use of non-mandatory words such as desire indicate that the testator did not wish to compel his wife to sell the suit property. He merely desired that his wife should endeavour to sell the property during her lifetime and divide the sale proceeds as she chose. 10.3 We also note that the High Court erred in observing that in the event that a sale was to be made by Nirmala Murthy, both the children would be entitled to a share in the sale proceeds. As mentioned supra, the testator intended to create an absolutely unfettered right in favour of his wife by virtue of the Will. Reading in other clauses that are merely expressive of his desire as compulsory dictates on such absolute ownership goes against the clear wording of the Will, and would amount to rewriting it. Thus, we do not find that there was any bequest made in favour of the children of the testator under the Will dated 07.06.1995. 10.4 In this regard, reliance sought to be placed by Respondent No. 1 on the decision in Kaivelikkal Ambunhi (supra), to argue that the subsequent bequest made in the latter part of the Will had to be given effect, is also misplaced, as the rule of last intention is only applicable when there is inconsistency in the bequests. We may note the following excerpt from the decision: 4. A Will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. This is regulated by the well-known maxim cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est which means that if in a Will there are two inconsistent provisions, the latter shall prevail over the earlier (See: Hammond, Re, Hammond v. Treharne [(1938) 3 All ER 308 : 54 TLR 903] ). …6. It may, however, be pointed out that this rule of interpretation can be invoked only if different clauses cannot be reconciled. (See: Rameshwar Bakhsh Singh v. Balraj Kuar [AIR 1935 PC 187 : 1935 All LJ 1133] ). (emphasis supplied) Here, there is no inconsistency in the clauses of the Will inasmuch as the house property was absolutely bequeathed to Nirmala Murthy and no inconsistent bequest has been made thereafter. As discussed supra, the part of the Will providing for the sale of the property during her lifetime and the distribution of the sale proceeds between the children cannot be treated as a bequest, as it was a mere desire expressed by the testator. 10.5 In any case, even if it is assumed that the latter clause went beyond a mere expression of desire and created a bequest in favour of the children of the testator (Appellant No. 1 and Respondent No. 1), the first clause creating an absolute right in favour of Nirmala Murthy shall prevail over such clause. In this regard, the following observations of this Court in Mauleshwar Mani (supra) are relevant: 11. From the decisions referred to above, the legal principle that emerges, inter alia, are: (1) where under a will, a testator has bequeathed his absolute interest in the property in favour of his wife, any subsequent bequest which is repugnant to the first bequeath would be invalid; and (2) where a testator has given a restricted or limited right in his property to his widow, it is open to the testator to bequeath the property after the death of his wife in the same will. 12. In view of the aforesaid principles that once the testator has given an absolute right and interest in his entire property to a devisee it is not open to the testator to further bequeath the same property in favour of the second set of persons in the same will, a testator cannot create successive legatees in his will. The object behind is that once an absolute right is vested in the first devisee the testator cannot change the line of succession of the first devisee. Where a testator having conferred an absolute right on anyone, the subsequent bequest for the same property in favour of other persons would be repugnant to the first bequest in the will and has to be held invalid. In the present case the testator Jamuna Prasad under the will had bequest his entire estate, movable and immovable property including the land under self- cultivation, house and groves etc. to his wife Smt Sona Devi and thereafter by subsequent bequest the testator gave the very same properties to nine sons of his daughters, which was not permissible… (emphasis supplied) Notably, these observations were reaffirmed by this Court in Madhuri Gosh (supra) as well. 10.6 Given that we find that an absolute right was given to Nirmala Murthy over the property, in view of the aforesaid decisions, any subsequent bequest sought in favour of the children of the testator cannot be given effect. Further, the reliance of Respondent No. 1 on the decision in Ramachandra Shenoy (supra) is misplaced inasmuch as the Clause in the Will in that case stated thus: 3.(c) All kinds of movable properties that shall be in my possession and authority at the time of my death i.e. all kinds of moveable properties inclusive of the amounts that shall be not from others and the cash – all these my eldest daughter Severina Sobina Coelho, shall after my death, enjoy and after her lifetime, her male children also shall enjoy permanently and with absolute interest. Clearly, the clauses in the Will in the present case are significantly different from the aforementioned clause, wherein the daughter was clearly given a life interest only. This is not the case with the right of Nirmala Murthy, which has been expressly stated to be absolute in nature.
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Murthy, both the children would be entitled to a share in the sale proceeds. As mentioned supra, the testator intended to create an absolutely unfettered right in favour of his wife by virtue of the Will. Reading in other clauses that are merely expressive of his desire as compulsory dictates on such absolute ownership goes against the clear wording of the Will, and would amount to rewriting it. Thus, we do not find that there was any bequest made in favour of the children of the testator under the Will dated 07.06.199510.4 In this regard, reliance sought to be placed by Respondent No. 1 on the decision in Kaivelikkal Ambunhi (supra), to argue that the subsequent bequest made in the latter part of the Will had to be given effect, is also misplaced, as the rule of last intention is only applicable when there is inconsistency in the bequestsHere, there is no inconsistency in the clauses of the Will inasmuch as the house property was absolutely bequeathed to Nirmala Murthy and no inconsistent bequest has been made thereafter. As discussed supra, the part of the Will providing for the sale of the property during her lifetime and the distribution of the sale proceeds between the children cannot be treated as a bequest, as it was a mere desire expressed by the testator10.6 Given that we find that an absolute right was given to Nirmala Murthy over the property, in view of the aforesaid decisions, any subsequent bequest sought in favour of the children of the testator cannot be given effect. Further, the reliance of Respondent No. 1 on the decision in Ramachandra Shenoy (supra) is misplaced inasmuch as the Clause in the Will in that case stated thus:3.(c) All kinds of movable properties that shall be in my possession and authority at the time of my death i.e. all kinds of moveable properties inclusive of the amounts that shall be not from others and the cash – all these my eldest daughter Severina Sobina Coelho, shall after my death, enjoy and after her lifetime, her male children also shall enjoy permanently and with absolute interestClearly, the clauses in the Will in the present case are significantly different from the aforementioned clause, wherein the daughter was clearly given a life interest only. This is not the case with the right of Nirmala Murthy, which has been expressly stated to be absolute in natureIn this regard, we note at the very outset that several observations have been made by the Trial Court and the High Court with respect to the circumstances in which the sale deed was executed, which cast an aspersion on its validity. However, we do not find the need to delve into this question as the same is beyond the scope of the suit filed by Respondent No. 1. Moreover, no prayer for setting aside the sale deed was raised by Nirmala Murthy either. Thus, we shall only confine ourselves to an examination of the sale deed vis-à-vis the Will dated 07.06.199512. Notably, the High Court found that the sale deed was not obtained by fraud or coercion on the part of the Appellants. However, it was held that such a deed was nevertheless unenforceable against Respondent No. 1, as it had been executed in a clandestine manner without his concurrence or consultation. The High Court found that a transparent process of sale of the property by Nirmala Murthy was integral to the intention of the testator, as he had clearly expressed a desire for his son to get a share of the sale consideration. Thus, it was held that the sale deed in question, having been executed without the knowledge of Respondent No. 1, was against such intention and therefore not binding on him. Upon perusing the record and the wording of the Will, we do not agree with such finding of the High Court12.1 As mentioned supra, the right vested under the Will in favour of Nirmala Murthy was an unfettered and absolute right. There is nothing in the wording of the Will which indicates that the testator necessarily required any subsequent sale, mortgage, or lease carried out by Nirmala Murthy to happen with the concurrence or consultation of his children. In fact, when one looks to the circumstances and the family relationship between the testator and his son, it becomes clear that their relations were strained. This is particularly reflected in Ex. P-17, a letter addressed by Nirmala Murthy to her son, Respondent No. 1 herein, where she specifically alludes to the ill treatment meted out by her son to his sister (Appellant No. 1) and the testator. In light of this, we find that a mere desire for the sale of the property and for the children to get a share in the proceeds therefrom cannot be read as a strict bar on the absolute right vested with Nirmala Murthy to deal with the property as she thought fit12.2 Thus, while it may have been desirable for Nirmala Murthy to carry out the sale transaction with the knowledge of Respondent No. 1, her failure to do so does not strike at the very root of the sale deed. In our considered opinion, interpreting the Will dated 07.06.1995 in a manner that places fetters on the power of Nirmala Murthy to sell the property by mandating consultation with her children would not be in consonance with the wording of the Will. Indeed, it effectively amounts to adding terms to the Will, which is impermissible12.3 In view of this, we find that the sale deed in question was executed in accordance with the Will dated 07.06.1995 and does not violate its terms. Therefore, Respondent No. 1 is also bound by the same and the finding of the High Court in this regard is liable to be set aside. The Appellants have acquired valid title over the suit property by virtue of the sale deed executed by Nirmala Murthy and are therefore entitled to possession of the same.
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M/S Rayala Corp. Pvt Ltd Vs. Assistant Commissioner Of Income Tax,Che | gains of business or profession”. The reason for which the aforestated issue has arisen is that though the assessee is having the house property and is receiving income by way of rent, the case of the assessee is that the assessee company is in business of renting its properties and is receiving rent as its business income, the said income should be taxed under the Head “Profits and gains of business or profession” whereas the case of the Revenue is that as the income is arising from House Property, the said income must be taxed under the head “Income from House Property”. >3. The learned counsel appearing for the assessee submitted that the issue involved in these appeals is no more res integra as this Court has decided in the case of Chennai Properties and Investments Ltd. v. Commissioner of Income Tax [2015] 373 ITR 673 (SC) that if an assessee is having his house property and by way of business he is giving the property on rent and if he is receiving rent from the said property as his business income, the said income, even if in the nature of rent, should be treated as “Business Income” because the assessee is having a business of renting his property and the rent which he receives is in the nature of his business income. 4. According to the learned counsel appearing for the assessee, the afore-stated judgment in the case of Chennai Properties (supra) has referred to all the judgments on the subject and more particularly, the judgment in the case of Karanpura Development Co. Ltd. v. CIT [1962] 44 ITR 362 (SC) which has summed up as under:- “As has been already pointed out in connection with the other two cases where there is a letting out of premises and collection of rents the assessment on property basis may be correct but not so, where the letting or sub-letting is part of a trading operation. The dividing line is difficult to find; but in the case of a company with its professed objects and the manner of its activities and the nature of its dealings with its property, it is possible to say on which side the operations fall and to what head the income is to be assigned.” 5. The learned counsel also submitted that the assessee is a private limited company and even as per its Memorandum of Association its business is to deal into real estate and also to earn income by way of rent by leasing or renting the properties belonging to the assessee company.6. The learned counsel also drew our attention to the fact that the High Court and the authorities below had come to a specific finding to the effect that the assessee company had stopped its other business activities and was having only an activity with regard to the leasing its properties and earning rent therefrom. Thus, except leasing the properties belonging to the assessee company, the company is not having any other business and the said fact is not in dispute at all.7. For the afore-stated reasons, the learned counsel submitted that the impugned judgment delivered by the High Court is not proper for the reason that the High Court has directed that the income earned by the appellant assessee should be treated as “Income from House Property”. 8. On the other hand, the learned counsel appearing for the respondent-Revenue made an effort to justify the reasons given by the High Court in the impugned judgment. The learned counsel also relied upon the judgment delivered by this Court in the case of M/s. S.G. Mercantile Corpn. (P) Ltd. v. CIT, Calcutta (1972) 1 SCC 465. According to him, the important question which would arise in all such cases is whether the acquisition of property for leasing and letting out all the shops and stalls would be essentially a part of business and trading operations of the assessee. According to the learned counsel appearing for the Revenue, leasing and letting out of shops and properties is not the main business of the assessee as per Memorandum of Association and therefore, the income earned by the assessee should be treated as income earned from House Property. He, therefore, submitted that the impugned judgment is just legal and proper and therefore, these appeals should be dismissed. 9. Upon hearing the learned counsel and going through the judgments cited by the learned counsel, we are of the view that the law laid down by this Court in the case of Chennai Properties (supra) shows the correct position of law and looking at the facts of the case in question, the case on hand is squarely covered by the said judgment. 10. Submissions made by the learned counsel appearing for the Revenue is to the effect that the rent should be the main source of income or the purpose for which the company is incorporated should be to earn income from rent, so as to make the rental income to be the income taxable under the head “Profits and Gains of Business or Profession”. It is an admitted fact in the instant case that the assessee company has only one business and that is of leasing its property and earning rent therefrom. Thus, even on the factual aspect, we do not find any substance in what has been submitted by the learned counsel appearing for the Revenue.11. The judgment relied upon by the learned counsel appearing for the assessee squarely covers the facts of the case involved in the appeals. The business of the company is to lease its property and to earn rent and therefore, the income so earned should be treated as its business income.12. In view of the law laid down by this Court in the case of Chennai Properties (supra) and looking at the facts of these appeals, in our opinion, the High court was not correct while deciding that the income of the assessee should be treated as Income from House Property. | 1[ds]10. Submissions made by the learned counsel appearing for the Revenue is to the effect that the rent should be the main source of income or the purpose for which the company is incorporated should be to earn income from rent, so as to make the rental income to be the income taxable under the headand Gains of Business orIt is an admitted fact in the instant case that the assessee company has only one business and that is of leasing its property and earning rent therefrom. Thus, even on the factual aspect, we do not find any substance in what has been submitted by the learned counsel appearing for the Revenue.11. The judgment relied upon by the learned counsel appearing for the assessee squarely covers the facts of the case involved in the appeals. The business of the company is to lease its property and to earn rent and therefore, the income so earned should be treated as its business income.12. In view of the law laid down by this Court in the case of Chennai Properties (supra) and looking at the facts of these appeals, in our opinion, the High court was not correct while deciding that the income of the assessee should be treated as Income from House Property. | 1 | 1,246 | 230 | ### Instruction:
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gains of business or profession”. The reason for which the aforestated issue has arisen is that though the assessee is having the house property and is receiving income by way of rent, the case of the assessee is that the assessee company is in business of renting its properties and is receiving rent as its business income, the said income should be taxed under the Head “Profits and gains of business or profession” whereas the case of the Revenue is that as the income is arising from House Property, the said income must be taxed under the head “Income from House Property”. >3. The learned counsel appearing for the assessee submitted that the issue involved in these appeals is no more res integra as this Court has decided in the case of Chennai Properties and Investments Ltd. v. Commissioner of Income Tax [2015] 373 ITR 673 (SC) that if an assessee is having his house property and by way of business he is giving the property on rent and if he is receiving rent from the said property as his business income, the said income, even if in the nature of rent, should be treated as “Business Income” because the assessee is having a business of renting his property and the rent which he receives is in the nature of his business income. 4. According to the learned counsel appearing for the assessee, the afore-stated judgment in the case of Chennai Properties (supra) has referred to all the judgments on the subject and more particularly, the judgment in the case of Karanpura Development Co. Ltd. v. CIT [1962] 44 ITR 362 (SC) which has summed up as under:- “As has been already pointed out in connection with the other two cases where there is a letting out of premises and collection of rents the assessment on property basis may be correct but not so, where the letting or sub-letting is part of a trading operation. The dividing line is difficult to find; but in the case of a company with its professed objects and the manner of its activities and the nature of its dealings with its property, it is possible to say on which side the operations fall and to what head the income is to be assigned.” 5. The learned counsel also submitted that the assessee is a private limited company and even as per its Memorandum of Association its business is to deal into real estate and also to earn income by way of rent by leasing or renting the properties belonging to the assessee company.6. The learned counsel also drew our attention to the fact that the High Court and the authorities below had come to a specific finding to the effect that the assessee company had stopped its other business activities and was having only an activity with regard to the leasing its properties and earning rent therefrom. Thus, except leasing the properties belonging to the assessee company, the company is not having any other business and the said fact is not in dispute at all.7. For the afore-stated reasons, the learned counsel submitted that the impugned judgment delivered by the High Court is not proper for the reason that the High Court has directed that the income earned by the appellant assessee should be treated as “Income from House Property”. 8. On the other hand, the learned counsel appearing for the respondent-Revenue made an effort to justify the reasons given by the High Court in the impugned judgment. The learned counsel also relied upon the judgment delivered by this Court in the case of M/s. S.G. Mercantile Corpn. (P) Ltd. v. CIT, Calcutta (1972) 1 SCC 465. According to him, the important question which would arise in all such cases is whether the acquisition of property for leasing and letting out all the shops and stalls would be essentially a part of business and trading operations of the assessee. According to the learned counsel appearing for the Revenue, leasing and letting out of shops and properties is not the main business of the assessee as per Memorandum of Association and therefore, the income earned by the assessee should be treated as income earned from House Property. He, therefore, submitted that the impugned judgment is just legal and proper and therefore, these appeals should be dismissed. 9. Upon hearing the learned counsel and going through the judgments cited by the learned counsel, we are of the view that the law laid down by this Court in the case of Chennai Properties (supra) shows the correct position of law and looking at the facts of the case in question, the case on hand is squarely covered by the said judgment. 10. Submissions made by the learned counsel appearing for the Revenue is to the effect that the rent should be the main source of income or the purpose for which the company is incorporated should be to earn income from rent, so as to make the rental income to be the income taxable under the head “Profits and Gains of Business or Profession”. It is an admitted fact in the instant case that the assessee company has only one business and that is of leasing its property and earning rent therefrom. Thus, even on the factual aspect, we do not find any substance in what has been submitted by the learned counsel appearing for the Revenue.11. The judgment relied upon by the learned counsel appearing for the assessee squarely covers the facts of the case involved in the appeals. The business of the company is to lease its property and to earn rent and therefore, the income so earned should be treated as its business income.12. In view of the law laid down by this Court in the case of Chennai Properties (supra) and looking at the facts of these appeals, in our opinion, the High court was not correct while deciding that the income of the assessee should be treated as Income from House Property.
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10. Submissions made by the learned counsel appearing for the Revenue is to the effect that the rent should be the main source of income or the purpose for which the company is incorporated should be to earn income from rent, so as to make the rental income to be the income taxable under the headand Gains of Business orIt is an admitted fact in the instant case that the assessee company has only one business and that is of leasing its property and earning rent therefrom. Thus, even on the factual aspect, we do not find any substance in what has been submitted by the learned counsel appearing for the Revenue.11. The judgment relied upon by the learned counsel appearing for the assessee squarely covers the facts of the case involved in the appeals. The business of the company is to lease its property and to earn rent and therefore, the income so earned should be treated as its business income.12. In view of the law laid down by this Court in the case of Chennai Properties (supra) and looking at the facts of these appeals, in our opinion, the High court was not correct while deciding that the income of the assessee should be treated as Income from House Property.
|
Mirdad and Others Vs. Board of Revenue and Others | after obtaining a decision of the Board of Revenue on the rights of the parties. In the records, the defendants respondents were shown as "Adhivasis" and they have continued to be so recorded.7. In 1958, Smt. Bhagwani applied to the Sub-Divisional Officer for correction of consolidation records, but, this application was dismissed on August 12, 1959, on the ground that the village had been de-notified on November 1, 1958, under Section 52 of the U. P. Consolidation of Holdings Act, so that no jurisdiction was left for correction in the course of consolidation proceedings. He took the view that the remedy, if any, of the aggrieved parties, lay only through a declaration of rights by a competent Court. In other words, what was entered in revenue records in the course of consolidation proceedings could only be corrected, if at all, on the results of a regular trial and decision by an appropriate authority.8. The area of the contest between the two sides was then shifted to compensation proceedings under Chapter IX-A of the Act where Smt. Bhagwani had objected that the respondents should have been entered only as "Asamis" and not as "Adhivasis". These objections were rejected by the Sub-Divisional Officer on July 11, 1960. An appeal against that, and then a second appeal filed by Smt. Bhagwani against the appellate Courts order were dismissed on merits. After that, Smt. Bhagwani had filed a writ petition in the Allahabad High Court. Shri Kesho Ram and then his transferees had continued this litigation on behalf of Smt. Bhagwani who died on November 27, 1962. The writ petition of Smt. Bhagwani was dismissed on September 19, 1962. That dismissal by a learned single Judge was the subject-matter of what is known as a "Special Appeal" in the Allahabad High Court which was heard and dismissed by a Division Bench on January 18, 1972. The judgment of that bench is under appeal before us.9. It appears that Smt. Bhagwani and her adopted son Kesho Ram had filed another suit also for the ejectment of the defendants under Section 202/209 of the Act. This was decreed by the trial Court and this decree was affirmed by the Additional Commissioner on appeal on September 11, 1967, against which the defendants had gone up to the Board of Revenue in second appeal. That second appeal was placed before the Board of Revenue together with an earlier appeal. The Board of Revenue held, by its order dated July 30, 1970, that findings in proceedings under Chapter IX-A were material and admissible for purposes of deciding questions of right in regular suits. It, however, stayed the hearing of this appeal as well as another appeal pending before it in connected proceedings the nature of which is not quite clear to us as the record is not before us. It is, however, clear that the stay order of the Board of Revenue was intended to operate only during the pendency of the two special appeals which were heard together by the High Court and disposed of by the judgment under appeal now before us. It is also clear from the judgment under appeal that the learned for the appellants before us had challenged the findings recorded in Chapter IX-A by the Board of Revenue whereas the learned Counsel for the respondents had submitted that the Revenue Courts had no jurisdiction at all to decide, in compensation proceedings under Chapter IX-A of the Act, whether a person is an "Adhivasis" or "Asami" and hence, Smt. Bhagwanis objection in those proceedings, raising a question of right of title, was not maintainable at all.10. In Sukhram Singh v. Smt. Harbheji (1969) 3 SCR 752 : (1969) 1 SCC 609 ), this Court held that compensation proceedings, under Section 240H contained in Chapter IX-A of the Act, could, in accordance with the procedure for reference on a question of title, cover also decisions on questions of right.11. On the special facts and circumstances of this case, the High Court sent for all the records, in various proceedings, from the Board of Revenue and took upon itself to dispose them of after deciding the crucial and decisive question on which the parties were at issue according to amended provisions of Section 21(1) (h) of the Act. The decision of the High Court was in line with the view of this Court in Sukhram Singhs case. As the decision of the High Court was correct on merits on the decisive question, the contention advanced on behalf of the appellants that only the Board itself could set aside its own remand order and that the amended law could not be taken into account by authorities subordinate to it does not seem to us to be substantial enough to deserve consideration as a ground of interference under the exceptional powers of this Court under Article 136. Even if any objections could be taken to the propriety of the procedure adopted by the High Court in sending for all the records of connected matters also pending before the Board of Revenue, by consent of both sides, and deciding them with others before it in order to put an end to an unnecessarily long and tortuous litigation, we cannot be induced to interfere. Apart from the fact that applications for writs of certiorari can sometimes be made to remove proceedings from one Court to another, the unusual procedure adopted does not affect the merits of the case on what is really decisive. We think that the High Court had rightly applied the amended law to patent facts of the case on the finding the Smt. Bhagwanis husband was not disabled so that she had lost the right to regain possession. The defendants respondents had also been in possession long enough to acquire immunity from eviction at the instance of Smt. Bhagwani or her representatives in interest who had slept over their rights too long to be permitted to registrate the question again after ten years from July 11, 1956.12. | 0[ds]11. On the special facts and circumstances of this case, the High Court sent for all the records, in various proceedings, from the Board of Revenue and took upon itself to dispose them of after deciding the crucial and decisive question on which the parties were at issue according to amended provisions of Section 21(1) (h) of the Act. The decision of the High Court was in line with the view of this Court in Sukhram Singhs case. As the decision of the High Court was correct on merits on the decisive question, the contention advanced on behalf of the appellants that only the Board itself could set aside its own remand order and that the amended law could not be taken into account by authorities subordinate to it does not seem to us to be substantial enough to deserve consideration as a ground of interference under the exceptional powers of this Court under Article 136. Even if any objections could be taken to the propriety of the procedure adopted by the High Court in sending for all the records of connected matters also pending before the Board of Revenue, by consent of both sides, and deciding them with others before it in order to put an end to an unnecessarily long and tortuous litigation, we cannot be induced to interfere. Apart from the fact that applications for writs of certiorari can sometimes be made to remove proceedings from one Court to another, the unusual procedure adopted does not affect the merits of the case on what is really decisive. We think that the High Court had rightly applied the amended law to patent facts of the case on the finding the Smt. Bhagwanis husband was not disabled so that she had lost the right to regain possession. The defendants respondents had also been in possession long enough to acquire immunity from eviction at the instance of Smt. Bhagwani or her representatives in interest who had slept over their rights too long to be permitted to registrate the question again after ten years from July 11, 1956. | 0 | 2,115 | 376 | ### 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 obtaining a decision of the Board of Revenue on the rights of the parties. In the records, the defendants respondents were shown as "Adhivasis" and they have continued to be so recorded.7. In 1958, Smt. Bhagwani applied to the Sub-Divisional Officer for correction of consolidation records, but, this application was dismissed on August 12, 1959, on the ground that the village had been de-notified on November 1, 1958, under Section 52 of the U. P. Consolidation of Holdings Act, so that no jurisdiction was left for correction in the course of consolidation proceedings. He took the view that the remedy, if any, of the aggrieved parties, lay only through a declaration of rights by a competent Court. In other words, what was entered in revenue records in the course of consolidation proceedings could only be corrected, if at all, on the results of a regular trial and decision by an appropriate authority.8. The area of the contest between the two sides was then shifted to compensation proceedings under Chapter IX-A of the Act where Smt. Bhagwani had objected that the respondents should have been entered only as "Asamis" and not as "Adhivasis". These objections were rejected by the Sub-Divisional Officer on July 11, 1960. An appeal against that, and then a second appeal filed by Smt. Bhagwani against the appellate Courts order were dismissed on merits. After that, Smt. Bhagwani had filed a writ petition in the Allahabad High Court. Shri Kesho Ram and then his transferees had continued this litigation on behalf of Smt. Bhagwani who died on November 27, 1962. The writ petition of Smt. Bhagwani was dismissed on September 19, 1962. That dismissal by a learned single Judge was the subject-matter of what is known as a "Special Appeal" in the Allahabad High Court which was heard and dismissed by a Division Bench on January 18, 1972. The judgment of that bench is under appeal before us.9. It appears that Smt. Bhagwani and her adopted son Kesho Ram had filed another suit also for the ejectment of the defendants under Section 202/209 of the Act. This was decreed by the trial Court and this decree was affirmed by the Additional Commissioner on appeal on September 11, 1967, against which the defendants had gone up to the Board of Revenue in second appeal. That second appeal was placed before the Board of Revenue together with an earlier appeal. The Board of Revenue held, by its order dated July 30, 1970, that findings in proceedings under Chapter IX-A were material and admissible for purposes of deciding questions of right in regular suits. It, however, stayed the hearing of this appeal as well as another appeal pending before it in connected proceedings the nature of which is not quite clear to us as the record is not before us. It is, however, clear that the stay order of the Board of Revenue was intended to operate only during the pendency of the two special appeals which were heard together by the High Court and disposed of by the judgment under appeal now before us. It is also clear from the judgment under appeal that the learned for the appellants before us had challenged the findings recorded in Chapter IX-A by the Board of Revenue whereas the learned Counsel for the respondents had submitted that the Revenue Courts had no jurisdiction at all to decide, in compensation proceedings under Chapter IX-A of the Act, whether a person is an "Adhivasis" or "Asami" and hence, Smt. Bhagwanis objection in those proceedings, raising a question of right of title, was not maintainable at all.10. In Sukhram Singh v. Smt. Harbheji (1969) 3 SCR 752 : (1969) 1 SCC 609 ), this Court held that compensation proceedings, under Section 240H contained in Chapter IX-A of the Act, could, in accordance with the procedure for reference on a question of title, cover also decisions on questions of right.11. On the special facts and circumstances of this case, the High Court sent for all the records, in various proceedings, from the Board of Revenue and took upon itself to dispose them of after deciding the crucial and decisive question on which the parties were at issue according to amended provisions of Section 21(1) (h) of the Act. The decision of the High Court was in line with the view of this Court in Sukhram Singhs case. As the decision of the High Court was correct on merits on the decisive question, the contention advanced on behalf of the appellants that only the Board itself could set aside its own remand order and that the amended law could not be taken into account by authorities subordinate to it does not seem to us to be substantial enough to deserve consideration as a ground of interference under the exceptional powers of this Court under Article 136. Even if any objections could be taken to the propriety of the procedure adopted by the High Court in sending for all the records of connected matters also pending before the Board of Revenue, by consent of both sides, and deciding them with others before it in order to put an end to an unnecessarily long and tortuous litigation, we cannot be induced to interfere. Apart from the fact that applications for writs of certiorari can sometimes be made to remove proceedings from one Court to another, the unusual procedure adopted does not affect the merits of the case on what is really decisive. We think that the High Court had rightly applied the amended law to patent facts of the case on the finding the Smt. Bhagwanis husband was not disabled so that she had lost the right to regain possession. The defendants respondents had also been in possession long enough to acquire immunity from eviction at the instance of Smt. Bhagwani or her representatives in interest who had slept over their rights too long to be permitted to registrate the question again after ten years from July 11, 1956.12.
### Response:
0
### Explanation:
11. On the special facts and circumstances of this case, the High Court sent for all the records, in various proceedings, from the Board of Revenue and took upon itself to dispose them of after deciding the crucial and decisive question on which the parties were at issue according to amended provisions of Section 21(1) (h) of the Act. The decision of the High Court was in line with the view of this Court in Sukhram Singhs case. As the decision of the High Court was correct on merits on the decisive question, the contention advanced on behalf of the appellants that only the Board itself could set aside its own remand order and that the amended law could not be taken into account by authorities subordinate to it does not seem to us to be substantial enough to deserve consideration as a ground of interference under the exceptional powers of this Court under Article 136. Even if any objections could be taken to the propriety of the procedure adopted by the High Court in sending for all the records of connected matters also pending before the Board of Revenue, by consent of both sides, and deciding them with others before it in order to put an end to an unnecessarily long and tortuous litigation, we cannot be induced to interfere. Apart from the fact that applications for writs of certiorari can sometimes be made to remove proceedings from one Court to another, the unusual procedure adopted does not affect the merits of the case on what is really decisive. We think that the High Court had rightly applied the amended law to patent facts of the case on the finding the Smt. Bhagwanis husband was not disabled so that she had lost the right to regain possession. The defendants respondents had also been in possession long enough to acquire immunity from eviction at the instance of Smt. Bhagwani or her representatives in interest who had slept over their rights too long to be permitted to registrate the question again after ten years from July 11, 1956.
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Mannam Balaswamy Vs. State of Andhra Pradesh | FAZAL ALI, J. The appeal by special leave is directed against the judgment of the Andhra Pradesh by which to set aside the acquittal of the appellant under S. 302 and convicted the appellant under the said section to imprisonment for life. The trial Court had convicted the accused under S. 304(1) of I.P.C. and sentenced him to 5 years R.I. on the ground that as the assault to the deceased was caused by the appellant due to sudden and grave provocation his case fell within the ambit of S. 304(1) of I.P.C. 2. We have heard counsel for the parties and have also gone through the judgment of the Courts below. According to the prosecution, there was some dispute between the deceased (appellant) and his father and on the date of occurrence, the appellant was quarrelling with his father when the deceased came there and intervened in the struggle and pushed aside the appellant. Thereafter the appellant went into his room and came with a knife and inflicted two stab injuries, one on the chest and the other on the left side of the abdomen of the deceased. As a result of these injuries the deceased died. We are rather surprised how the trial Court took the view that the case of the appellant few within the purview of S. 304(1) of I.P.C. There was no. question of any sudden and grave provocation at all. In fact the appellant tried to assault the innocent intervener in the quarrel between him and his father. Secondly, the act of the appellant was a cruel act and he took undue advantage of the situation because instead of keeping quiet he went to the room and brought a knife in order to cause the death of the deceased who was an innocent intervener. We are, therefore, satisfied that the view taken by the trial Court on the question of law was absolutely wrong and High Court was, therefore, right in setting aside the acquittal of the appellant under S. 302. On the facts proved in the case, in our opinion on other view was possible. | 0[ds]2. We have heard counsel for the parties and have also gone through the judgment of the Courts below. According to the prosecution, there was some dispute between the deceased (appellant) and his father and on the date of occurrence, the appellant was quarrelling with his father when the deceased came there and intervened in the struggle and pushed aside the appellant. Thereafter the appellant went into his room and came with a knife and inflicted two stab injuries, one on the chest and the other on the left side of the abdomen of the deceased. As a result of these injuries the deceased died. We are rather surprised how the trial Court took the view that the case of the appellant few within the purview of S. 304(1) of I.P.C. There was no. question of any sudden and grave provocation at all. In fact the appellant tried to assault the innocent intervener in the quarrel between him and his father. Secondly, the act of the appellant was a cruel act and he took undue advantage of the situation because instead of keeping quiet he went to the room and brought a knife in order to cause the death of the deceased who was an innocent intervener. We are, therefore, satisfied that the view taken by the trial Court on the question of law was absolutely wrong and High Court was, therefore, right in setting aside the acquittal of the appellant under S. 302. On the facts proved in the case, in our opinion on other view was possible. | 0 | 389 | 289 | ### 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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FAZAL ALI, J. The appeal by special leave is directed against the judgment of the Andhra Pradesh by which to set aside the acquittal of the appellant under S. 302 and convicted the appellant under the said section to imprisonment for life. The trial Court had convicted the accused under S. 304(1) of I.P.C. and sentenced him to 5 years R.I. on the ground that as the assault to the deceased was caused by the appellant due to sudden and grave provocation his case fell within the ambit of S. 304(1) of I.P.C. 2. We have heard counsel for the parties and have also gone through the judgment of the Courts below. According to the prosecution, there was some dispute between the deceased (appellant) and his father and on the date of occurrence, the appellant was quarrelling with his father when the deceased came there and intervened in the struggle and pushed aside the appellant. Thereafter the appellant went into his room and came with a knife and inflicted two stab injuries, one on the chest and the other on the left side of the abdomen of the deceased. As a result of these injuries the deceased died. We are rather surprised how the trial Court took the view that the case of the appellant few within the purview of S. 304(1) of I.P.C. There was no. question of any sudden and grave provocation at all. In fact the appellant tried to assault the innocent intervener in the quarrel between him and his father. Secondly, the act of the appellant was a cruel act and he took undue advantage of the situation because instead of keeping quiet he went to the room and brought a knife in order to cause the death of the deceased who was an innocent intervener. We are, therefore, satisfied that the view taken by the trial Court on the question of law was absolutely wrong and High Court was, therefore, right in setting aside the acquittal of the appellant under S. 302. On the facts proved in the case, in our opinion on other view was possible.
### Response:
0
### Explanation:
2. We have heard counsel for the parties and have also gone through the judgment of the Courts below. According to the prosecution, there was some dispute between the deceased (appellant) and his father and on the date of occurrence, the appellant was quarrelling with his father when the deceased came there and intervened in the struggle and pushed aside the appellant. Thereafter the appellant went into his room and came with a knife and inflicted two stab injuries, one on the chest and the other on the left side of the abdomen of the deceased. As a result of these injuries the deceased died. We are rather surprised how the trial Court took the view that the case of the appellant few within the purview of S. 304(1) of I.P.C. There was no. question of any sudden and grave provocation at all. In fact the appellant tried to assault the innocent intervener in the quarrel between him and his father. Secondly, the act of the appellant was a cruel act and he took undue advantage of the situation because instead of keeping quiet he went to the room and brought a knife in order to cause the death of the deceased who was an innocent intervener. We are, therefore, satisfied that the view taken by the trial Court on the question of law was absolutely wrong and High Court was, therefore, right in setting aside the acquittal of the appellant under S. 302. On the facts proved in the case, in our opinion on other view was possible.
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Aklu Ram Mahto Vs. Rajendra Mahto | obliterate the distinction between Article 191(1)(a) of the Constitution and Section 10 of the Representation of the People Act, 1951. 10. However, in the later case of Biharilal Dobray v. Roshan Lal Dobray, 1984(1) SCC 551 at page 569 this Court said that even though the incorporation of a body corporate may suggest that the statute intended it to be a statutory corporation independent of the Government, it is not conclusive on the question whether it is really so independent. Sometimes the form may be that of a body corporate independent of the Government. But in substance it may be just the alter ego of the Government itself. The true test of determination of the said question depends upon the degree of control the Government has over it, the extent of control exercised by several other bodies or committees over it and their composition, the degree of its dependence on Government for its financial needs and its functional aspect, namely, whether the body is discharging any important governmental function or just some function which is merely optional for the Government. In Biharilal Dobray a teacher who was employed by the Board of Basic Education under the U.P. Basic Education Act, 1972 was considered as holding an office of profit under the State of the ground that the U.P. Basic Education Act discharged an important responsibility of the Government to provide primary education in the State. The Act enabled the State Government to take over all basic schools which were being run by the local bodies in the State and to manage them as provided under the Act; as also to administer all matters pertaining to the entire basic education in the State through the Board. The teachers and other employees were to be appointed in accordance with Rules by officers who were themselves appointed by the Government. The disciplinary proceedings in respect of the employees were subject to the final decision of the State Government. In these circumstances, the post of a teacher under the U.P. Basic Education Act was an office of profit under the Government. 11. In the case of Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and Anr., 1992(4) SCC 404, however, the post of a teacher of a school run by the Integrated Tribal Development Agency (ITDA) which was a registered society, was held not to be an office of profit under the Government. The Government by its order had directed that all the educational institutions in the ITDA shall be brought under the unified control of the education department. The Government accorded sanction for creation of posts and funds for meeting the expenditure. The project officer of the ITDA who was also the District Collector alone appointed teachers and had the power to remove them. The Court said that the degree and extent of control of the Government had to be examined on the facts of each case. Although Government had some control over the ITDA, it was a registered society having its own constitution. The project officer and not the Government had the power to appoint and remove teachers. The whole scheme was set up for the welfare of tribals and it was entrusted to ITDA, an authority by itself, subject to the control of the Government in certain respects just like any other local authority. Therefore, taking a practical view it could not be said that the teacher was holding an office of profit under the Government. 12. We need not examine more authorities, since the principles for applying Article 191(1)(a) appear to be well settled. 13. The appellant, however, relied upon State of Gujarat and Anr., etc. v. Raman Lal Keshav Lal Soni and others etc., 1983(2) SCC 33 which was a decision of a Constitution Bench of this Court. This decision was not concerned with Article 191(1)(a). This Court, however, was required to decide whether ex-municipal employees who were allotted to the Panchayat Service of the State Government had the status of Government servants. The Court examined the provisions of the Gujarat Panchayats Act, 1961 and held that the panchayat service constituted under Section 203 of the Gujarat Panchayat Act is a civil service of the State and the members of the service are Government servants. We fail to see how this judgment can be applied to the facts of the present case. Â37Â3 Å 14. The Bokaro Steel Plant is under the management and control of the Steel Authority of India Ltd. This is a company incorporated under the Companies Act. Undoubtedly, its shares are owned by the Central Government. The Chairman and the Board of Directors are appointed by the President of India. However, the appointment and removal of workers in Bokaro Steel Plant is under the control of the Steel Authority of India Ltd. Their remuneration is also determined by the Steel Authority of India Ltd. The functions discharged by the Steel Authority of India Ltd. or by the Bokaro Steel Plant cannot be considered as essential functions of the Government. Amongst the objects of the Steel Authority of India Ltd. set out in the Memorandum of Association are to carry on in India or elsewhere the trade or business of manufacturing, prospecting, raising, operating, buying, selling, importing, exporting, purchasing or otherwise dealing in iron and steel of all qualities, grades any types. These objects also include rendering consultancy services to promote and organise an integrated and efficient development of iron and steel industry and to act as an agent of the Government/public sector financial institutions in the manner set out in the objects clause. In this context a worker holding the post of Khalashi or a Meter Reader is not subject to the control of the Central Government nor is the power of his appointment or removal exercised by the Central Government. Control over his work is exercised not by the Government, but by the Steel Authority of India Ltd. The respondents cannot, therefore, be considered as holding an office of profit under the Central Government. | 0[ds]13. The appellant, however, relied upon State of Gujarat and Anr., etc. v. Raman Lal Keshav Lal Soni and others etc., 1983(2) SCC 33 which was a decision of a Constitution Bench of this Court. This decision was not concerned with Article 191(1)(a). This Court, however, was required to decide whether ex-municipal employees who were allotted to the Panchayat Service of the State Government had the status of Government servants. The Court examined the provisions of the Gujarat Panchayats Act, 1961 and held that the panchayat service constituted under Section 203 of the Gujarat Panchayat Act is a civil service of the State and the members of the service are Government servants. We fail to see how this judgment can be applied to the facts of the present case. Â37Â3 Å14. The Bokaro Steel Plant is under the management and control of the Steel Authority of India Ltd. This is a company incorporated under the Companies Act. Undoubtedly, its shares are owned by the Central Government. The Chairman and the Board of Directors are appointed by the President of India. However, the appointment and removal of workers in Bokaro Steel Plant is under the control of the Steel Authority of India Ltd. Their remuneration is also determined by the Steel Authority of India Ltd. The functions discharged by the Steel Authority of India Ltd. or by the Bokaro Steel Plant cannot be considered as essential functions of the Government. Amongst the objects of the Steel Authority of India Ltd. set out in the Memorandum of Association are to carry on in India or elsewhere the trade or business of manufacturing, prospecting, raising, operating, buying, selling, importing, exporting, purchasing or otherwise dealing in iron and steel of all qualities, grades any types. These objects also include rendering consultancy services to promote and organise an integrated and efficient development of iron and steel industry and to act as an agent of the Government/public sector financial institutions in the manner set out in the objects clause. In this context a worker holding the post of Khalashi or a Meter Reader is not subject to the control of the Central Government nor is the power of his appointment or removal exercised by the Central Government. Control over his work is exercised not by the Government, but by the Steel Authority of India Ltd. The respondents cannot, therefore, be considered as holding an office of profit under the Central Government. | 0 | 3,108 | 460 | ### 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:
obliterate the distinction between Article 191(1)(a) of the Constitution and Section 10 of the Representation of the People Act, 1951. 10. However, in the later case of Biharilal Dobray v. Roshan Lal Dobray, 1984(1) SCC 551 at page 569 this Court said that even though the incorporation of a body corporate may suggest that the statute intended it to be a statutory corporation independent of the Government, it is not conclusive on the question whether it is really so independent. Sometimes the form may be that of a body corporate independent of the Government. But in substance it may be just the alter ego of the Government itself. The true test of determination of the said question depends upon the degree of control the Government has over it, the extent of control exercised by several other bodies or committees over it and their composition, the degree of its dependence on Government for its financial needs and its functional aspect, namely, whether the body is discharging any important governmental function or just some function which is merely optional for the Government. In Biharilal Dobray a teacher who was employed by the Board of Basic Education under the U.P. Basic Education Act, 1972 was considered as holding an office of profit under the State of the ground that the U.P. Basic Education Act discharged an important responsibility of the Government to provide primary education in the State. The Act enabled the State Government to take over all basic schools which were being run by the local bodies in the State and to manage them as provided under the Act; as also to administer all matters pertaining to the entire basic education in the State through the Board. The teachers and other employees were to be appointed in accordance with Rules by officers who were themselves appointed by the Government. The disciplinary proceedings in respect of the employees were subject to the final decision of the State Government. In these circumstances, the post of a teacher under the U.P. Basic Education Act was an office of profit under the Government. 11. In the case of Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and Anr., 1992(4) SCC 404, however, the post of a teacher of a school run by the Integrated Tribal Development Agency (ITDA) which was a registered society, was held not to be an office of profit under the Government. The Government by its order had directed that all the educational institutions in the ITDA shall be brought under the unified control of the education department. The Government accorded sanction for creation of posts and funds for meeting the expenditure. The project officer of the ITDA who was also the District Collector alone appointed teachers and had the power to remove them. The Court said that the degree and extent of control of the Government had to be examined on the facts of each case. Although Government had some control over the ITDA, it was a registered society having its own constitution. The project officer and not the Government had the power to appoint and remove teachers. The whole scheme was set up for the welfare of tribals and it was entrusted to ITDA, an authority by itself, subject to the control of the Government in certain respects just like any other local authority. Therefore, taking a practical view it could not be said that the teacher was holding an office of profit under the Government. 12. We need not examine more authorities, since the principles for applying Article 191(1)(a) appear to be well settled. 13. The appellant, however, relied upon State of Gujarat and Anr., etc. v. Raman Lal Keshav Lal Soni and others etc., 1983(2) SCC 33 which was a decision of a Constitution Bench of this Court. This decision was not concerned with Article 191(1)(a). This Court, however, was required to decide whether ex-municipal employees who were allotted to the Panchayat Service of the State Government had the status of Government servants. The Court examined the provisions of the Gujarat Panchayats Act, 1961 and held that the panchayat service constituted under Section 203 of the Gujarat Panchayat Act is a civil service of the State and the members of the service are Government servants. We fail to see how this judgment can be applied to the facts of the present case. Â37Â3 Å 14. The Bokaro Steel Plant is under the management and control of the Steel Authority of India Ltd. This is a company incorporated under the Companies Act. Undoubtedly, its shares are owned by the Central Government. The Chairman and the Board of Directors are appointed by the President of India. However, the appointment and removal of workers in Bokaro Steel Plant is under the control of the Steel Authority of India Ltd. Their remuneration is also determined by the Steel Authority of India Ltd. The functions discharged by the Steel Authority of India Ltd. or by the Bokaro Steel Plant cannot be considered as essential functions of the Government. Amongst the objects of the Steel Authority of India Ltd. set out in the Memorandum of Association are to carry on in India or elsewhere the trade or business of manufacturing, prospecting, raising, operating, buying, selling, importing, exporting, purchasing or otherwise dealing in iron and steel of all qualities, grades any types. These objects also include rendering consultancy services to promote and organise an integrated and efficient development of iron and steel industry and to act as an agent of the Government/public sector financial institutions in the manner set out in the objects clause. In this context a worker holding the post of Khalashi or a Meter Reader is not subject to the control of the Central Government nor is the power of his appointment or removal exercised by the Central Government. Control over his work is exercised not by the Government, but by the Steel Authority of India Ltd. The respondents cannot, therefore, be considered as holding an office of profit under the Central Government.
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13. The appellant, however, relied upon State of Gujarat and Anr., etc. v. Raman Lal Keshav Lal Soni and others etc., 1983(2) SCC 33 which was a decision of a Constitution Bench of this Court. This decision was not concerned with Article 191(1)(a). This Court, however, was required to decide whether ex-municipal employees who were allotted to the Panchayat Service of the State Government had the status of Government servants. The Court examined the provisions of the Gujarat Panchayats Act, 1961 and held that the panchayat service constituted under Section 203 of the Gujarat Panchayat Act is a civil service of the State and the members of the service are Government servants. We fail to see how this judgment can be applied to the facts of the present case. Â37Â3 Å14. The Bokaro Steel Plant is under the management and control of the Steel Authority of India Ltd. This is a company incorporated under the Companies Act. Undoubtedly, its shares are owned by the Central Government. The Chairman and the Board of Directors are appointed by the President of India. However, the appointment and removal of workers in Bokaro Steel Plant is under the control of the Steel Authority of India Ltd. Their remuneration is also determined by the Steel Authority of India Ltd. The functions discharged by the Steel Authority of India Ltd. or by the Bokaro Steel Plant cannot be considered as essential functions of the Government. Amongst the objects of the Steel Authority of India Ltd. set out in the Memorandum of Association are to carry on in India or elsewhere the trade or business of manufacturing, prospecting, raising, operating, buying, selling, importing, exporting, purchasing or otherwise dealing in iron and steel of all qualities, grades any types. These objects also include rendering consultancy services to promote and organise an integrated and efficient development of iron and steel industry and to act as an agent of the Government/public sector financial institutions in the manner set out in the objects clause. In this context a worker holding the post of Khalashi or a Meter Reader is not subject to the control of the Central Government nor is the power of his appointment or removal exercised by the Central Government. Control over his work is exercised not by the Government, but by the Steel Authority of India Ltd. The respondents cannot, therefore, be considered as holding an office of profit under the Central Government.
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Vijay Kumar Sharma Vs. State of Karnataka | Neither had it provided for the regulation of movement of sugar cane as was done by the Central Government in Clauses (3) and (4) of the Sugar Cane Control. Order 1955. Likewise, the provision contained in Section 17 of the State Act in regard to the payment of sugar cane price (as fixed by the Central Government) and the recovery thereof as if it was an arrear of land revenue did not find its place in the Central Government Sugar Cane Control Order 1955. The provisions in the two legislations were, therefore, mutually exclusive and did not impings upon each other. By referring to the provisions of Central Government Sugar Cane Control Order 1955 and the U. P. Government Sugar Cane (Regulation and Purchase). Order 1954 issued under the respective statutes, the Court pointed out that none of those provisions also overlapped. The Central was silent with regard to some of the provisions which had been enacted by the State and the State was silent with regard to some of the provisions which had been enacted by the Central. There was no repugnancy whatever between those provisions, and neither the State Act nor the rules framed thereunder as well as the State Governments Order issued under it trenched upon the field covered by the Essential Commodities Act. The Court therefore held that since there was no repugnance between the two, the provisions of Article 254(2) of the Constitution did not come into play. The Court then considered whether the repealing Section 16 of the Essential Commodities Act and clause 7 of the Sugar Cane Control Order 1955 had repealed the State Act to the extent mentioned therein. Section 16(1) (b) provides as follows:- "(16(1) The following laws are hereby repealed - (a) xxx xxx xxx xxx (b) any other law in force in any State immediately before the commencement of ,this Act in so far as such law controls or authorises the control of the production, supply and distribution of, and trade and commerce in, any essential commodity). The contention was that the expression "any other law" covered by the impugned State Act which was in force in the State immediately before the commencement of the Essential Commodities Act in so far as it controlled or authorised the control of production, supply and distribution of and trade and commerce in sugar cane (which was), an essential comniondity under the Central Act and Clause (7) of the Sugar Cane Control Order. The contention advanced on behalf of the U.P. State was that under the proviso to Article 254(2), the power to repeal a law passed by the State Legislature was incidental to enacting a law relating to the same matter as is dealt with in the State legislation and that a statute which merely repeals a law passed by the State Legislature without enacting substantive provisions on the subject would not be within the proviso, as it could not have been the intention of the Constitution that on a topic within the concurrent sphere of the legislation, there should be a vacuum. The Court observed that there was considerable force in the said contention and there was much to be said for the view that a repeal simpliciter was not within the scope of the proviso. The Court, however, stated that it was not necessary to give its decision on the said point as the petitioner in that case would fail on another ground. The Court then observed that while the proviso to Article 254(2) does confer on Parliament a power to repeal a law passed by the State Legislature, that power is, under the terms of the proviso, subject to certain limitations. It is limited to enacting a law with respect to the same matter adding to, amending, varying or repealing a "law so made by the State Legislature". The law referred to here is the law mentioned in the body of Article 254(2). It is a law made by the State Legislature with reference to a matter in the Concurrent List containing provisions repugnant to an earlier law made by Parliament and with the consent of the President. It is only such a law that could, be altered, a mended or repealed under the proviso. The impugned Act was not a law relating to any matter, which is the subject of an earlier legislation by Parliament. It was a substantive law covering a field not occupied by Parliament, and no question of its contain in any provisions inconsistent with a law enacted by Parliament could therefore arise. To such a law, the proviso had no application and Section 16(1)(b) of Act X of 1955 and clause 7(1) of the Sugarcane Control Order, 1955 must, in this view, be held to be invalid. (sic). 34. The aforesaid review of the authorities makes it clear that whenever repugnancy between the State and Central Legislation is alleged, what has to be first examined is whether the two legislations cover or relate to the same subject matter. The test for deter mining the same is the usual one, namely, to find out the dominant intention of the two legislations. If the dominant intention, i.e. the pith and substance of the legislations is different, they cover different subject matters. If the subject matters covered by the legislations are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field. The legislation, to be on the same subject matter must further cover the entire field covered by the other. A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2). Both the legislations must be substantially on the same subject to attract the Article. | 0[ds]What is important from our point of view, is the view taken in that case that. when repugnancy is alleged between the two statutes, it is necessary to examine whether the two laws occupy the same field, whether the new or the later statute covers the entire subject matter of the old, whether legislature intended to lay down an exhaustive code in respect of the subject matter covered by the earlier law so as to replace it in its entirety and whether the earlier special statute can be construed as remaining in effect as a qualification of or exception to the later general law, since the new statute is enacted knowing fully well the existence the earlier law and yet it has not repealed it expressly. The decision further lays down that for examining whether the two statutes cover the same subject matter, what is necessary to examine is the scope and the object of the two enactments, and that has to be done by ascertaining the intention in the usual way and what is meant by the usual way is nothing more or less than the ascertainment of the dominant object of the two legislations25. It is thus clear from the provisions of the Karnataka Act that the whole object of the Act is to nationalise the contract carriage service in the State with a view to put an end to the abuse of the contract carriage services by the private operators and to provide better transport facilities to the public, and also to prevent concentration of the wealth in the hands of the few and to utilise the resources of the country to subserve the interests of all. To secure the objective of the Act, it was also necessary to prohibit the grant of the contract carriage permits to private individuals and to reserve them exclusively to the State undertaking which was done by Sections 14 and 20 of the Act. Unlike the MV Act 1988, which is admittedly enacted by the Parliament under Entry 35 of the Concurrent List, to regulate the operation of the motor vehicles, the object of the Karnataka Act is not only the regulation of the operation of the motor vehicles. Nor is its object merely to prevent the private owners from operating their vehicles with the exclusive privilege of such operation being reserved in favour of the State or the State Undertaking. For if that were the only object, the same could have been achieved by the Transport Undertakings of the State following the special provisions relating to State Transport Undertakings in Chapter IV-A, ofthe Motor Vehicles Act, 1939 which was in operation when the Karnataka Act was brought into force. The very fact that instead the State undertook the exercise of enacting the Karnataka Act shows that the object of the State Legislature in enacting it was materially different. This is also obvious from the various provisions of the enactment pointed out above26. It is for this reason that the contention advanced by the petitioners that the object of the Karnataka Act and that of the MV Act, 1988 is the same and that both of them occupy the same field cannot be accepted. A comparison of the provisions of the MV Act, 1939 (old Act) and MV Act, 1988 (new Act) further shows that the latter has merely replaced the former. All that it has done is to update, simplify and rationalise the law on the subject. For this purpose it has made important provisions in the following matters, namely:"a) rationalisation of certain definitions with additions of certain new definitions of new types of vehicles;b) stricter procedures relating to grant of driving licences and the period of validity thereof,c) laying down of standards for the components and parts of motor vehicles;d) standards for anti-pollution control devices;e) provision for issuing fitness certificates of vehicles also by the authorised testing stations;f) enabling provision for updating the system of registration marks;g) liberalised schemes for grant of stage carriage permits on non-nationalised routes, all India Tourist permits and also national permits for goods carriages,(h) to (1) ................."27. The special provisions relating to the State Transport Undertakings which are contained in Chapter VI of the new Act are pari materia with those of Chapter IV-A of the old Act, with only this difference that whereas under the old Act it was the State Transport Undertaking which had to prepare a scheme for running and operating the transport service by it in relation to any area or route or portion thereof exclusively; under the new Act such a scheme has to be prepared by the State Government itself. There is no difference in the legal consequences of the schemes under the two enactments. Both envisage the Operation of the services by the State Transport Undertaking to the exclusion of the rest, and cancellation of the existing permits and compensation only for the deprivation of the balance of the period of the permit. No acquisition of the vehicles or the paraphernalia connected with such vehicles is envisaged as is the case under the Karnataka ActIt is also not correct to say that the new Act, i.e. M V Act 1988 incorporates a special policy of liberalisation for private sector operations in the transport field. We see no such provision in the Act nor was any pointed out to us. The provisions with regard to the grant of permits under both the old and the new Acts are the same. In any case there is no provision for liberalisation of the grant of contract carriage permits in favour of the private individuals or institutions so as to come in conflict with the Karnataka Act28. Thus the Karnataka Act and the MV Act, 1988 deal with two different subject matters. As stated earlier the Karnataka Act is enacted by the State Legislature for acquisition of contract carriages under entry 42 of the Concurrent list read with Article 31 of the Constitution to give effect to the provisions of Article 39(b) and (c) thereof. The MV Act 1988 on the other hand is enacted by the Parliament under entry 35 of the Concurrent list to regulate the operation of the motor vehicles. The objects and the subject matters of the two enactments are materially different. Hence the provisions of Article 254 do not come into play in the present case and hence there is no question of repugnancy between the two legislations29. Shri Nariman, the learned counsel for the petitioners, however, contended that the provisions of Sections 14 and 20 of the Karnataka Act were in direct conflict with the provisions of Sections 74 and 80(2) of the MV Act 1988. According to him while the Regional Transport Authority (RTA) is enjoined by the provisions of Section 74 read with Section 80(2) of the MV Act 1988, ordinarily not to refuse to grant an application for permit of any kind, the provisions of Sections 14 and 20 of the Karnataka Act prohibit any person from applying for, and any officer or authority from entertaining or granting, application for running any contract carriage in the State. Thus there is a direct conflict between the two legislations, and since the MV Act 1988 is a later legislation, operating in the same area, it should be deemed to have impliedly repealed the provisions of Sections 14 and 20 of the Karnataka Act, even if the latter Act had received the assent of the President. This is so because of the proviso to sub-clause (2) of Article 254 of the ConstitutionThis contention proceeds on the footing that the two legislations occupy the same field. As has been pointed out earlier, the objects of the two legislations are materially different. The provisions of Sections 51 and 57 of the old Act further correspond to provisions of Sections 74 and 80 of the new Act. The Karnataka Act had received the assent of the President in spite of the provisions of Sections 51 and 57 of the old Act. The assent of the president, further as stated by the respondents, was taken by way of abundant precaution, although the subject matters of the two Acts were different. The provisions of Sections 14 and 20 of the Karnataka Act were incidental and necessary to carry out the main object of the said Act. Without the said provisions, the object of the said Act would have been. In the case of State of Karnataka v. Ranganatha Reddy (supra) while repelling the contention that there was a legislative encroachment by the Karnataka Act because it impugned on the subject of Inter-State Trade and Commerce in the Union List as it provided also for acquisition of transport carriages running on inter-State routes, this Court in para 32 of the Judgment has observed as follows:"..........It (the Karnataka Act) is not an Act which deals with any inter-State trade and commerce. Even assuming for the sake of argument that carriage of passengers from one State to the other is in one sense a part of the Inter-State Trade and Commerce the impugned Act is not one which seeks to legislate in regard to the said topic. Primarily and almost wholly it is an Act to provide for the acquisition of contract carriages, the Intra-State permits and the other properties sittizited in the State of Karnataka. In pith and substance it is an Act of that kind. The incidental encroachment on the topic of inter State trade and commerce, even assurnring there is some, cannot invalidate the Act. The MV Act 1939 was enacted under Entry 20 of List III of Schedule Seven of the Government of India Act 1935 corresponding to Entry 35 of List III of the Seventh Schedule to the Constitution. The subject being in the Concurrent List and the Act having received the assent of the President, even the repugnancy, if any between the Act and the Motor Vehicles Act stands cured and cannot be a ground to invalidate the Act. Entry 42 of List III deals with acquisition of property. The state has enacted the Act mainly tirlder this entry......."According to me these observations should put an end to any controversy on the subject, namely, whether the two Legislations are enacted under two different entries in the Concurrent List, and whether they occupy different areas or notI am also unable to appreciate the contention that the provisions of Sections 14 and 20 of the Karnataka Act are in conflict with the provisions of Sections 74 and 80 of the new MV Act 1988. Section 98 of the MV Act 1988 in terms clearly states (as did Section 68B of the MV Act 1939) that Chapter VI relating to the special provisions about the State Transport Undertaking and the rules and orders made thereunder, shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law. Sections 74 and 80 relating to the grant of the contract carriage permit and the procedure in applying for the grant of such permits respectively, are in Chapter V. This means that when under Chapter VI, a scheme is prepared by the State Government entrusting the. contract carriage services in relation to any area or route or portion thereof, to a State Transport Undertaking to the exclusion complete or partial of other persons, the provisions of Sections 74 and 80 would have no application and the private transport operators cannot apply for the grant of contract carriage permits under Section 80 nor can such. permits be granted by the Transport Authority. In other words, the MV Act 1988 also makes a provision for nationalisation of routes, and envisages a denial of permits to private operators when routes are so nationalised. Hence it is not correct to say that there is a conflict between the provisions of the two Acts30. It was then contended that when there is a repugnancy between the legislations under Article 254 of the Constitution, the doctrine of pith and substance does not apply, and even if some of the provisions of the impugned State legislation are in conflict with some of the provisions of the Central legislation, the conflicting provisions of the State legislation will be invalid. In support of this contention, reliance was placed on two decisions one of the Federal Court in the case of Meghraj v. Allahrakhiya, AIR 1942 FC 27 and the other of the Privy Council reported in AIR 1947 PC 722 (or AIR 1947 PC 60 -Ed.) confirming the formerThe Federal Court in the above decision has observed that when a provincial Act is objected to as contravening not Section 100 but Section 107 (1) the Government of India Act 1935 (corresponding to Article 254(1) of the Constitution) the question of the pith and substance of the impugned Act does not arise. In that case, the validity of the Punjab Restitution of Mortgage Lands Act was challenged on the ground that some of its provisions were repugnant to certain provisions of the Contract Act and of the Civil Procedure Code. The Court held that there was no repugnancy between the legislations. But while holding so, the Court made a one sentence observation as follows : "In the judgment of the High Court here is some discussion of the question of the "pith and substance" of the Act; but that question does not arise as objection is taken not under Section 100 of the Constitution Act but under Section 107." There is no discussion on the point. The arguments, if any, advanced on the question are neither reproduced nor dealt with. The observation further was not necessary for the decision in that case, since as is pointed out above, the Court had held that there was no repugnancy between the two statutes since, they covered two different subject matters. Hence the issue as to whether the impugned Punjab Restitution of Mortgage Lands Act was valid because the pith and substance of the Act covered an area different from the one covered by the Contract Act and the Civil Procedure Code cud not fall for consideration before the Court. What is more, when the matter went in appeal before the Privy Council, the said point was not even remotely referred to and I find no observation in the judgment either confirming, or dissenting from, the said observations. This being the case the said observations cannot be regarded as more than general in nature. They are not even an obiter dicta much less are they the ratio decided of the case. Hence the said observations do not have a binding effectEven otherwise I am of the view that not to apply the theory of pith and substance when the repugnancy between the two statutes is to be considered under. Article 254 of the Constitution would be illogical when the same doctrine is applied while considering whether there is an encroachment by the Union or the State legislature on a subject exclusively reserved for the other. When the legislative encroachment is under consideration the doctrine of pith and substance comes to the aid to validate a legislation which would otherwise be invalid for the very want of legislative competence. When the repugnancy between the two legislations is under consideration, what is in issue is whether the provision of the State enactment, though otherwise constitutionally valid, has lost its validity because the Parliament has made a legislation with a conflicting provision on allegedly the same matter. If it is open to resolve the conflict between two entries in different List, viz. the Union and the State List by examining the dominant purpose and therefore the pith and substance of the two legislations, there is no reason why the repugnancy between the provisions of the two legislations under different entries in the same List, viz. the Concurrent List should not be resolved by scrutinising the same by the same touchstone. What is to be ascertained in each case is whether the legislations are on the same subject matter or not. In both cases the cause of conflict is the apparent identity of the subject matters. The tests for resolving it therefore cannot be different31. I may in this connection refer to some of the authorities relied upon by the parties. In Municipal Council Palai v. T. J. Joseph (1964) 2 SCR 87 , this Court had to consider the respugnancy between the resolution passed by the appellant Municipal Council in exercise of the powers vested in it under Sections 286 and 287 of the Travancore District. Municipalities Act 1941, and the provisions of Section 42 of the Travancore-Cochin Motor Vehicles Act 1950 which came into force on January 5, 1950, providing for the use of a public bus stand constructed for stage carriage buses starting from and returning to the Municipal limits or passing through its limitsThe respondent operators challenged the resolution of the Council by contending that the provisions of Sections 286 and 287 of the Municipalities Act stood repealed by implication by virtue of the provisions of Section 42 of Travancore-Cochin Motor Vehicles Act, 1950. That Section read as follows:"Government or any authority authorised in this behalf by Government may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers."The High Court accepted the contention of the respondents and allowed the Writ Petition. In appeal against the said decision, this Court discussed the law relating to the repugnancy between two legisiations by referring to various decided cases foreign as well as Indian. The court pointed out that in Daw v. The Metropolitan Board of Works, (1862) 142 ER 1104 after stating the general principles of construction, the Court there had said that when the legislation was found dealing with the same subject matter in two Acts, so far as the later statute derogates from and is inconsistent with the earlier one the legislature must be held to have intended to deal in the later statute with the same subject matter which was within the ambit of the earlier one. This court further observed that in that case the English Court was concerned with the statutes which covered more or less the same subject matter and had the same object to serve. That decision further had kept open the question whether the powers conferred upon one authority by an earlier Act could continue to be exercised by that authority, after the enactment of a provision in a subsequent law which conferred wide powers on another authority which would include some of the powers conferred by the earlier statute till the new authority chose to exercise the powers conferred upon it. Referring to the case of The Great Central Gas Consumers Co. v. Clarke (1863) 143 ER 331, the Court observed that the foundation of that decision was that the later statute was a general one whereas the previous one was a special one and, therefore, the special statute had to give way to the later general statuteReferring to the case ofGoodwin v. Phillips, (1908) 7 CLR 16the Court observed that the doctrine of implied repeal was well recognised, and that repeal by implication was a convenient form of legislation and that by using this device, the legislature must be presumed to intend to achieve a consistent body of law. The Court then went on to say that it is undoubtedly true that the legislature can exercise the powers of repeal by implication, but it is an equally well settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject, the failure to add a repealing clause indicates that the intent was not to repeal existing legislationWhat is important from our point of view, is the view taken in that case that. when repugnancy is alleged between the two statutes, it is necessary to examine whether the two laws occupy the same field, whether the new or the later statute covers the entire subject matter of the old, whether legislature intended to lay down an exhaustive code in respect of the subject matter covered by the earlier law so as to replace it in its entirety and whether the earlier special statute can be construed as remaining in effect as a qualification of or exception to the later general law, since the new statute is enacted knowing fully well the existence the earlier law and yet it has not repealed it expressly. The decision further lays down that for examining whether the two statutes cover the same subject matter, what is necessary to examine is the scope and the object of the two enactments, and that has to be done by ascertaining the intention in the usual way and what is meant by the usual way is nothing more or less than the ascertainment of the dominant object of the two legislationsThe contention was that the expression "any other law" covered by the impugned State Act which was in force in the State immediately before the commencement of the Essential Commodities Act in so far as it controlled or authorised the control of production, supply and distribution of and trade and commerce in sugar cane (which was), an essential comniondity under the Central Act and Clause (7) of the Sugar Cane Control Order. The contention advanced on behalf of the U.P. State was that under the proviso to Article 254(2), the power to repeal a law passed by the State Legislature was incidental to enacting a law relating to the same matter as is dealt with in the State legislation and that a statute which merely repeals a law passed by the State Legislature without enacting substantive provisions on the subject would not be within the proviso, as it could not have been the intention of the Constitution that on a topic within the concurrent sphere of the legislation, there should be a vacuum. The Court observed that there was considerable force in the said contention and there was much to be said for the view that a repeal simpliciter was not within the scope of the proviso. The Court, however, stated that it was not necessary to give its decision on the said point as the petitioner in that case would fail on another ground. The Court then observed that while the proviso to Article 254(2) does confer on Parliament a power to repeal a law passed by the State Legislature, that power is, under the terms of the proviso, subject to certain limitations. It is limited to enacting a law with respect to the same matter adding to, amending, varying or repealing a "law so made by the State Legislature". The law referred to here is the law mentioned in the body of Article 254(2). It is a law made by the State Legislature with reference to a matter in the Concurrent List containing provisions repugnant to an earlier law made by Parliament and with the consent of the President. It is only such a law that could, be altered, a mended or repealed under the proviso. The impugned Act was not a law relating to any matter, which is the subject of an earlier legislation by Parliament. It was a substantive law covering a field not occupied by Parliament, and no question of its contain in any provisions inconsistent with a law enacted by Parliament could therefore arise. To such a law, the proviso had no application and Section 16(1)(b) of Act X of 1955 and clause 7(1) of the Sugarcane Control Order, 1955 must, in this view, be held to be invalid. (sic)34. The aforesaid review of the authorities makes it clear that whenever repugnancy between the State and Central Legislation is alleged, what has to be first examined is whether the two legislations cover or relate to the same subject matter. The test for deter mining the same is the usual one, namely, to find out the dominant intention of the two legislations. If the dominant intention, i.e. the pith and substance of the legislations is different, they cover different subject matters. If the subject matters covered by the legislations are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field. The legislation, to be on the same subject matter must further cover the entire field covered by the other. A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2). Both the legislations must be substantially on the same subject to attract the Article35. In this view of the matter I am of the view that there is no repugnancy in the provisions of Sections 14 and 20 of the Karnataka Act and Sections 74 and 80 of the MV Act 1988. The petitions must therefore fail and are hereby dismissed | 0 | 13,386 | 4,629 | ### Instruction:
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Neither had it provided for the regulation of movement of sugar cane as was done by the Central Government in Clauses (3) and (4) of the Sugar Cane Control. Order 1955. Likewise, the provision contained in Section 17 of the State Act in regard to the payment of sugar cane price (as fixed by the Central Government) and the recovery thereof as if it was an arrear of land revenue did not find its place in the Central Government Sugar Cane Control Order 1955. The provisions in the two legislations were, therefore, mutually exclusive and did not impings upon each other. By referring to the provisions of Central Government Sugar Cane Control Order 1955 and the U. P. Government Sugar Cane (Regulation and Purchase). Order 1954 issued under the respective statutes, the Court pointed out that none of those provisions also overlapped. The Central was silent with regard to some of the provisions which had been enacted by the State and the State was silent with regard to some of the provisions which had been enacted by the Central. There was no repugnancy whatever between those provisions, and neither the State Act nor the rules framed thereunder as well as the State Governments Order issued under it trenched upon the field covered by the Essential Commodities Act. The Court therefore held that since there was no repugnance between the two, the provisions of Article 254(2) of the Constitution did not come into play. The Court then considered whether the repealing Section 16 of the Essential Commodities Act and clause 7 of the Sugar Cane Control Order 1955 had repealed the State Act to the extent mentioned therein. Section 16(1) (b) provides as follows:- "(16(1) The following laws are hereby repealed - (a) xxx xxx xxx xxx (b) any other law in force in any State immediately before the commencement of ,this Act in so far as such law controls or authorises the control of the production, supply and distribution of, and trade and commerce in, any essential commodity). The contention was that the expression "any other law" covered by the impugned State Act which was in force in the State immediately before the commencement of the Essential Commodities Act in so far as it controlled or authorised the control of production, supply and distribution of and trade and commerce in sugar cane (which was), an essential comniondity under the Central Act and Clause (7) of the Sugar Cane Control Order. The contention advanced on behalf of the U.P. State was that under the proviso to Article 254(2), the power to repeal a law passed by the State Legislature was incidental to enacting a law relating to the same matter as is dealt with in the State legislation and that a statute which merely repeals a law passed by the State Legislature without enacting substantive provisions on the subject would not be within the proviso, as it could not have been the intention of the Constitution that on a topic within the concurrent sphere of the legislation, there should be a vacuum. The Court observed that there was considerable force in the said contention and there was much to be said for the view that a repeal simpliciter was not within the scope of the proviso. The Court, however, stated that it was not necessary to give its decision on the said point as the petitioner in that case would fail on another ground. The Court then observed that while the proviso to Article 254(2) does confer on Parliament a power to repeal a law passed by the State Legislature, that power is, under the terms of the proviso, subject to certain limitations. It is limited to enacting a law with respect to the same matter adding to, amending, varying or repealing a "law so made by the State Legislature". The law referred to here is the law mentioned in the body of Article 254(2). It is a law made by the State Legislature with reference to a matter in the Concurrent List containing provisions repugnant to an earlier law made by Parliament and with the consent of the President. It is only such a law that could, be altered, a mended or repealed under the proviso. The impugned Act was not a law relating to any matter, which is the subject of an earlier legislation by Parliament. It was a substantive law covering a field not occupied by Parliament, and no question of its contain in any provisions inconsistent with a law enacted by Parliament could therefore arise. To such a law, the proviso had no application and Section 16(1)(b) of Act X of 1955 and clause 7(1) of the Sugarcane Control Order, 1955 must, in this view, be held to be invalid. (sic). 34. The aforesaid review of the authorities makes it clear that whenever repugnancy between the State and Central Legislation is alleged, what has to be first examined is whether the two legislations cover or relate to the same subject matter. The test for deter mining the same is the usual one, namely, to find out the dominant intention of the two legislations. If the dominant intention, i.e. the pith and substance of the legislations is different, they cover different subject matters. If the subject matters covered by the legislations are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field. The legislation, to be on the same subject matter must further cover the entire field covered by the other. A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2). Both the legislations must be substantially on the same subject to attract the Article.
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by using this device, the legislature must be presumed to intend to achieve a consistent body of law. The Court then went on to say that it is undoubtedly true that the legislature can exercise the powers of repeal by implication, but it is an equally well settled principle of law that there is a presumption against an implied repeal. Upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject, the failure to add a repealing clause indicates that the intent was not to repeal existing legislationWhat is important from our point of view, is the view taken in that case that. when repugnancy is alleged between the two statutes, it is necessary to examine whether the two laws occupy the same field, whether the new or the later statute covers the entire subject matter of the old, whether legislature intended to lay down an exhaustive code in respect of the subject matter covered by the earlier law so as to replace it in its entirety and whether the earlier special statute can be construed as remaining in effect as a qualification of or exception to the later general law, since the new statute is enacted knowing fully well the existence the earlier law and yet it has not repealed it expressly. The decision further lays down that for examining whether the two statutes cover the same subject matter, what is necessary to examine is the scope and the object of the two enactments, and that has to be done by ascertaining the intention in the usual way and what is meant by the usual way is nothing more or less than the ascertainment of the dominant object of the two legislationsThe contention was that the expression "any other law" covered by the impugned State Act which was in force in the State immediately before the commencement of the Essential Commodities Act in so far as it controlled or authorised the control of production, supply and distribution of and trade and commerce in sugar cane (which was), an essential comniondity under the Central Act and Clause (7) of the Sugar Cane Control Order. The contention advanced on behalf of the U.P. State was that under the proviso to Article 254(2), the power to repeal a law passed by the State Legislature was incidental to enacting a law relating to the same matter as is dealt with in the State legislation and that a statute which merely repeals a law passed by the State Legislature without enacting substantive provisions on the subject would not be within the proviso, as it could not have been the intention of the Constitution that on a topic within the concurrent sphere of the legislation, there should be a vacuum. The Court observed that there was considerable force in the said contention and there was much to be said for the view that a repeal simpliciter was not within the scope of the proviso. The Court, however, stated that it was not necessary to give its decision on the said point as the petitioner in that case would fail on another ground. The Court then observed that while the proviso to Article 254(2) does confer on Parliament a power to repeal a law passed by the State Legislature, that power is, under the terms of the proviso, subject to certain limitations. It is limited to enacting a law with respect to the same matter adding to, amending, varying or repealing a "law so made by the State Legislature". The law referred to here is the law mentioned in the body of Article 254(2). It is a law made by the State Legislature with reference to a matter in the Concurrent List containing provisions repugnant to an earlier law made by Parliament and with the consent of the President. It is only such a law that could, be altered, a mended or repealed under the proviso. The impugned Act was not a law relating to any matter, which is the subject of an earlier legislation by Parliament. It was a substantive law covering a field not occupied by Parliament, and no question of its contain in any provisions inconsistent with a law enacted by Parliament could therefore arise. To such a law, the proviso had no application and Section 16(1)(b) of Act X of 1955 and clause 7(1) of the Sugarcane Control Order, 1955 must, in this view, be held to be invalid. (sic)34. The aforesaid review of the authorities makes it clear that whenever repugnancy between the State and Central Legislation is alleged, what has to be first examined is whether the two legislations cover or relate to the same subject matter. The test for deter mining the same is the usual one, namely, to find out the dominant intention of the two legislations. If the dominant intention, i.e. the pith and substance of the legislations is different, they cover different subject matters. If the subject matters covered by the legislations are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field. The legislation, to be on the same subject matter must further cover the entire field covered by the other. A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2). Both the legislations must be substantially on the same subject to attract the Article35. In this view of the matter I am of the view that there is no repugnancy in the provisions of Sections 14 and 20 of the Karnataka Act and Sections 74 and 80 of the MV Act 1988. The petitions must therefore fail and are hereby dismissed
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SHASHI PRAKASH KHEMKA (DEAD) THROUGH LRS Vs. NEPC MICON (NOW CALLED NEPC INDIA LTD.) | 1. Heard Mr. Nikhil Nayyar, learned counsel for the appellants. The respondents have been served, but from the inception of the special leave petition in the year 2007, none has been appearing for the respondents. 2. The subject matter of dispute before us is the exercise of power under Section 111-A of the Companies Act, 1956 (as amended in 1988) and the Depositories Related Laws (Amendment) Act, 1997. In terms of the impugned order of the Madras High Court, on an appeal filed against the order of the Company Law Board, the view taken by the Company Law Board has been reversed and thus, in effect, the appellants have been left to a remedy of civil suit. 3. Learned counsel for the appellants says that the issue raised by the appellants qua the transfer of shares, whether done rightly or wrongly, has to be adjudicated by some forum - whether it be a civil suit or the exercise of jurisdiction by the then Company Law Board. 4. Learned counsel for the appellants has drawn our attention to the view expressed in Ammonia Supplies Corporation (P) Ltd. v. Modern Plastic Containers Pvt. Ltd. and Others (1998) 7 SCC 105 , to canvass the proposition that while examining the scope of Section 155 (the predecessor to Section 111), a view was taken that the power was fairly wide, but in case of a serious dispute as to title, the matter could be relegated to a civil suit. The submission of the learned counsel is that the subsequent legal developments to the impugned order have a direct effect on the present case as the Companies Act, 2013 has been amended which provides for the power of rectification of the Register under Section 59 of the said Act. Learned counsel has also drawn our attention to Section 430 of the Act, which reads as under:- 430. Civil court not to have jurisdiction.- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Acgt or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate. 5. The effect of the aforesaid provision is that in matters in respect of which power has been conferred on the NCLT, the jurisdiction of the civil court is completely barred. 6. It is not in dispute that were a dispute to arise today, the civil suit remedy would be completely barred and the power would be vested with the National Company Law Tribunal (NCLT) under Section 39 of the said Act. We are conscious of the fact that in the present case, the cause of action has arisen at a stage prior to this enactment. However, we are of the view that relegating the parties to civil suit now would not be the appropriate remedy, especially considering the manner in which Section 430 of the Act is widely worded. | 1[ds]5. The effect of the aforesaid provision is that in matters in respect of which power has been conferred on the NCLT, the jurisdiction of the civil court is completely barred.6. It is not in dispute that were a dispute to arise today, the civil suit remedy would be completely barred and the power would be vested with the National Company Law Tribunal (NCLT) under Section 39 of the said Act. We are conscious of the fact that in the present case, the cause of action has arisen at a stage prior to this enactment. However, we are of the view that relegating the parties to civil suit now would not be the appropriate remedy, especially considering the manner in which Section 430 of the Act is widely worded. | 1 | 596 | 145 | ### Instruction:
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1. Heard Mr. Nikhil Nayyar, learned counsel for the appellants. The respondents have been served, but from the inception of the special leave petition in the year 2007, none has been appearing for the respondents. 2. The subject matter of dispute before us is the exercise of power under Section 111-A of the Companies Act, 1956 (as amended in 1988) and the Depositories Related Laws (Amendment) Act, 1997. In terms of the impugned order of the Madras High Court, on an appeal filed against the order of the Company Law Board, the view taken by the Company Law Board has been reversed and thus, in effect, the appellants have been left to a remedy of civil suit. 3. Learned counsel for the appellants says that the issue raised by the appellants qua the transfer of shares, whether done rightly or wrongly, has to be adjudicated by some forum - whether it be a civil suit or the exercise of jurisdiction by the then Company Law Board. 4. Learned counsel for the appellants has drawn our attention to the view expressed in Ammonia Supplies Corporation (P) Ltd. v. Modern Plastic Containers Pvt. Ltd. and Others (1998) 7 SCC 105 , to canvass the proposition that while examining the scope of Section 155 (the predecessor to Section 111), a view was taken that the power was fairly wide, but in case of a serious dispute as to title, the matter could be relegated to a civil suit. The submission of the learned counsel is that the subsequent legal developments to the impugned order have a direct effect on the present case as the Companies Act, 2013 has been amended which provides for the power of rectification of the Register under Section 59 of the said Act. Learned counsel has also drawn our attention to Section 430 of the Act, which reads as under:- 430. Civil court not to have jurisdiction.- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Acgt or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate. 5. The effect of the aforesaid provision is that in matters in respect of which power has been conferred on the NCLT, the jurisdiction of the civil court is completely barred. 6. It is not in dispute that were a dispute to arise today, the civil suit remedy would be completely barred and the power would be vested with the National Company Law Tribunal (NCLT) under Section 39 of the said Act. We are conscious of the fact that in the present case, the cause of action has arisen at a stage prior to this enactment. However, we are of the view that relegating the parties to civil suit now would not be the appropriate remedy, especially considering the manner in which Section 430 of the Act is widely worded.
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5. The effect of the aforesaid provision is that in matters in respect of which power has been conferred on the NCLT, the jurisdiction of the civil court is completely barred.6. It is not in dispute that were a dispute to arise today, the civil suit remedy would be completely barred and the power would be vested with the National Company Law Tribunal (NCLT) under Section 39 of the said Act. We are conscious of the fact that in the present case, the cause of action has arisen at a stage prior to this enactment. However, we are of the view that relegating the parties to civil suit now would not be the appropriate remedy, especially considering the manner in which Section 430 of the Act is widely worded.
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Vishnu Agencies (Pvt.) Ltd. Etc Vs. Commercial Tax Officer & Ors. Etc | the policy of the legislature towards contract, and the law today interferes at numerous points with the freedom of the parties to make what contract they like ..."44. This intervention is especially necessary today when most contracts entered into by ordinary people are not the result of individual negotiation. It is not possible for a private person to settle the terms of his agreement with the British Railway Board or with the local electricity authority. The standard form contract is the rule. He must either accept the terms of this contract in toto or go without. Since however, it is not feasible to deprive oneself of such necessary services, the individual is compelled to accept on those terms. In view of this fact, it is quite clear that freedom of contract is now largely an illusion" (Ansons Law of Contract, 23rd Edn., pages 3-4).45. Anson is perhaps over-optimistic in saying that there has been a fundamental change in social outlook and in the legislative policy towards contract. Anyway, with the high ideals of the preamble and the directive principles of out Constitution there has to be such a fundamental change in judicial outlook. Instances given in Cheshire and Anson have their parallels in India too, wherein freedom of contract has largely become an illusion. The policy of out Parliament in regard to contracts including those involved in sale of goods has still to reflect recognition of the necessity for a change, which could be done by a suitable modification of the definition of "sale" of goods.46. It all began with the reliance in Gannon Dunkerley on the statement in the 8th Edition 1950 of Benjamin on Sal that to constitute a valid sale there must be a concurrence of four element one of which is "mutual assent". The statement is a reproduction of what the celebrated author had said in the 2nd and last edition prepared by himself in 1873. The majority judgment in New India Sugar Mills also derives sustenance from the same passage in Benjamins 8th edition. But as observed by Hidayatullah, J., his dissenting judgment in that case consent may be express or implied and offer and acceptance need not be in elementary form. It is interesting that General Editor of the 1974 edition "Benjamins Sale of Goods" says in the face that the editors decided to producer entirely new work partly because commercial institutions, modes of transport and payment, forms of contract, types of goods, market areas and marketing methods, and the extent of legislative and governmental regulation and intervention, had changed considerably since 1868, when the 1st edition of the book was published. The formulations in Benjamins 2nd edition relating to the conditions of a valid "sale" of goods, which are reproduced in the 8th edition, evidently require modification in the light of regulatory measures of social control. Hidayatullah, J., in his minority judgment referred to above, struck the new path; and Bachawat, J., who spoke for the court in Andhra Sugar, went a step ahead by declaring that "the contract is a contract of sale and purchase of cane, though the buyer is obliged to give his assent under compulsion of a statute". The concept of freedom of contract as observed by Hedge, J., in India Steel and Wire Products, has undergone a great deal of change even in those countries where it was considered as one of the basic economic requirements of a democratic life. Thus, in Ridge Nominees Ltd. 29, the Court of Appeal, while rejecting the argument that there was no sale because the essential element of mutual assent was lacking, held that the dissent of the shareholder was overriden by an assent which the statute imposed on him, fictional though it may be, that a sale may not always require the consensual element mentioned in Benjamin on Sale, 8th Edition, page 2, and that there may in truth be a compulsory sale of property with which the owner his compelled to part for a price against his will, Decisions in cases of "compulsory acquisition", where such acquisition is patent as in Kirkness or is inferred as in Chittar Mal fall in a separate and distinct class. The observations of Lord Reid in Kirkness that "sale" is a nomen juris the name of a particular consensual contract - have therefore to be understood in the context in which they were made, namely, the compulsory requisition cannot amount to sale. In Gannon Dunkerley, Venkatarama Aiyar, J., was influenced largely by these observations and by the definition of "sales" in the Benjamins 8th edition. Gannon Dunkerley involved an altogether different point and is not an authority for the proportion that there cannot at all be a contract of sale if the parties to a transaction are obliged to comply with the terms of a statute. Since we are putting in a nutshell what we have discussed earlier, we would like to reiterate in the interest of uniformity and certainty of law that with great deference, the majority decision in New India Sugar Mills is not good law. The true legal position is as is stated in the minority judgment in that case and in India Steel and Wire Products, Andhra Sugars, Salar Jung Sugar Mills and Oil and Natural Gas Commission. To the extent to which Cement Distributors Pvt. Ltd. is inconsistent with these judgment, it is also, with respect, not good law.47. The conclusion which, therefore, emerges is that the transaction between the appellant, M/s. Vishnu Agencies (Pvt.) Ltd., and the allottees are sales within the meaning of S. 2(g) of the Bengal Finance (Sales Tax) Act, 1941. For the same reason, transactions between the growers and procuring agents as also those between the rice millers on the one hand and the wholesalers or retailers on the other are sales within the meaning of S. 2 n) of the Andhra Pradesh General Sales Tax Act, 1957. The turnover is accordingly exigible to sales tax or purchase tax as the case may be. | 0[ds]15. According to these definitions of "sale" in the West Bengal and Andhra Pradesh Sales Tax Acts, transactions between the appellants on the one hand and the allottees or nominees on the other are patently sales because, indisputably, in one case the property in cement and in the other, property in paddy and rice was transferred for cash consideration by the appellants; and in so far as the West Bengal case is concerned, property in the goods did not pass to the transferees by way of mortgage hypothecation, charge or pledge. But that isprinciple that in interpreting a constituent or organic statute, that construction most beneficial to the widest possible amplitude of its powers must be adopted has been examined over the years by various courts, including this court, and is too firmly established to meritdecisions have taken the view that a Constitution must not be construed in a narrow and pedantic sense, that a broad and liberal spirit should inspire those whose duty is to interpret it, that a Constitution of a Government living and organic thing which of all instruments has the greatest claim to be construed ut res magis valeat quam pereat that the legislature in selecting subjects of taxation is entitled to take things as it finds them is rerum natura and that it is not proper that a court should deny to such a legislature the right of solving taxation problems unfettered by a priori legal categories which often derive from the exercise of legislative power in the same constitutional unit.The view expressed in Gannon Dunkerley that the words "sale of goods" in entry 48 must be interpreted in the sense which they bear in the Sale of Goods Act, 1930, and that the meaning of those words should not be left to fluctuate with the definition of "sale" in laws relating to sales of goods which might be in force for the time being may, with respect, bear further consideration but that may have to await a more suitableAttorney-General vs. Edison Telephone company of London, a question arose whether the Edison Telephone Company, London, infringed by installation of telephones, the exclusive privilege of transmitting telegrams which was conferred upon the Postmaster-General under an Act of 1869. The decision depended on the meaning of the word "telegraph" in the Acts of 1863 and 1869. The company contended that since telephones were unknown at the time when those Acts were passed, the definition of "telegraph" could not comprehend "telephones". That contention was negatived by an English Court. In Regulation and Control of Radio Communication in Canada, In re, a similar question arose as to whether "broadcasting" was covered by the expression "telegraph and other works and undertakings" in S. 92(10)(a) of the Constitution Act of 1867. The Privy Council answered the question in the affirmative and was apparently not impressed by the contention that broadcasting was not known as a means of communication at the time when the Constitution Act was passed. These decisions proceed on the principle that if after the enactment of a legislation, new facts and situations arise which could not have been in the contemplation of the legislature, statutory provisions can justifiably be applied to those facts and situations so long as the words of the statute are in a broad sense capable of containing them. This principle, according to the view expressed in Gannon Dunkerley, did not apply to the interpretation of entry 48, a view which, in out opinion, is capable of further scrutiny. It is, unnecessary in these appeals to investigate the matter any further because, the position which emerges after putting on the words of entry 48 the same meaning which those words bear in the sale of Goods Act, 1930, is that, in order to constitute a sale, it is necessary that there should be an agreement between the parties. In other words, the effect of the construction which the court put on the words of entry 48 in Gannon Dunkerley is that a sale is necessarily a consensual transaction and, if the parties have no volition or option to bargain, there can be no sale. For the present purposes, this view may be assumed to reflect the correct legal position but even so, the transactions which are the subject-matter of these appeals will amount to sales.These limitations on the normal right of dealers and consumers to supply and obtain the goods, the obligation imposed on the parties and the penalties prescribed by the Control Order do not a out opinion, militate against the position that eventually, the parties must be deemed to have completed the transactions under an agreement by which one party bourn outsell to supply the stated quantity of goods to the other at a price not higher than the notified price and the other party consented to accept the goods on the terms and conditions mentioned in the permit or it order of allotment issued in its favour by the concerned authority. Officer and acceptance need not always be in the elementary from, nor indeed does the Law of Contract or of Sale of Goods require thus consent to a contract must be express. It is common place that officer and acceptance can be spelt out from the conduct of the parties which covers not only their acts but omissions as well. Indeed, on occasion silence can be more eloquent the eloquence itself. Just as correspondence between the parties can constitute disclose an offer and acceptance, so can their conduct. This is because, law was not require officer and acceptance to conform to any set pattern or formula.24. In order, therefore, to determine whether there was any agreement consensuality between the parties, we have regard to their conduct at or about time when the goods changed hands the first place, it is not obligatory on a trader to deal in cement nor on any case acquire it. The primary fact, therefore, that the decision of the trader to deal in an essential commodity is volitional. Such volition carries with it the willingness trade in the commodity strictly on terms of the Control Orders. The consumer too, who is under no compulsion to acquire or possess cement, decides as a matter of his volition to it on the terms of the permit or the of allotment issued in his favour brings the two parties together, one of whom is willing to supply the commodity and the other to receive. When the allottee presents his permit the dealer, he signifies his willingness obtain the commodity from the dealer the terms stated in the permit. His conduct reflects his consent. And when, upon the presentation of the permit, the dealer acts upon it, he impliedly agrees to supply the commodity to the allottee on the terms by which he has voluntarily bound himself to trade in the commodity. His conduct too reflects his consent. Thus, though both parties are bound to comply with the legal requirements governing the transaction, they agree as between themselves to enter into the transaction on statutory terms, one agreeing to supply the commodity to the other on those terms and the other agreeing to accept it from him on the very terms. It is, therefore, not correct to say that the transactions between the appellants and the allottees are not consensual. They, with their free consent, agreed to enter into the transactions.Strong reliance was placed by the factory owners in Andhra Sugars on the majority judgment of Kapur and Shah, JJ., in New India Sugar Mills Ltd. vs. Commissioner of sales Tax, to which we must refer here. The "admitted course of dealing" between the parties in the case was that the Governments of various consuming State used to intimate to the sugar controller of India, from time to time, their requirements of sugar and similarly, the factory owners used to send to the sugar controller of India statements of stock was sugar held by them. On a consideration of the request received from the State Government and the statements of stock received from the factories, the sugar controller used to make allotment of sugar. The allotment order was addressed by the sugar controller to the factory owner direction him to supply sugar to the State Government in question in accordance with the dispatch instruction receive from the competent officer of the State Government. A copy of the allotment order was simultaneously sent to the State Government concerned, on receipt which the competent authority of the State Government sent to the factory concern detailed instructions about the destination to which the sugar was to be despatch as also the quantities of sugar to despatched to each place. The Madras Government which, under this arrangement received its quota of sugar from New India Sugar Mills, also laid down the procedure of payment. The Patna High court having held that the supply of sugar by the mills to the province of Madras was liable to be taxed under the Bihar sales Tax Act, 1947, the mills filed an appeal to this court which was decided by the Bench of three learned Judges. Kapur and Shah, JJ., held that since the mills were compelled to carry out the direction of the controller and since they had no volition in the matter of supply of sugar to the state of Madras, there was no offer by them to the State Government and no acceptance by the latter. Shah, J., speaking for the majority, observed that a contract of sale between the seller and the buyer is a prerequisite to a sale and since there was no such contract, the transaction in question which the Bihar sales tax authorities sought to was not exigible to sales tax.29. Hidayatullah, J., who delivered a dissenting opinion, observed after reviewing the position both under the English and the Indian law, that though it was true that consent makes a contract of sales, consent "may be express or implied and it cannot not be said that unless the offer and acceptance are there in an elementary from, there can be taxable sale". Taking the view that on obtaining the necessary permit, the sugar mills on the one hand and the Government of Madras on the order agreed to "sell" and "purchase" sugar could admit of no doubt, the learned Judge said that when the Province of Madras after receiving the permit, telegraphed instruction to despatch sugar and the mills despatch it, "a contract emerged and consent must be implied on both sides though not expressed antecedently to the permit". The controller brought the seller and the purchaser together, gave them permission to supply and receive sugar leading thereby to be implied contract of sale between the parties." The learned Judge accepted that there was annulment of compulsion in both selling and buying, perhaps more for the supplier than for the receiver, but, according to him "a compelled sale is nevertheless a sale" and "sales often take place without volition of a party". The learned Judge summed up the matter pithily thus : "So long as the parties made under controls at fixed price and accept there as any other law of the realm because they must, the contract is at the fixed price both sides having or deemed to have agreed to such a price. Consent under the law of contract need not be express, it can be implied ..... The present is just another example of an implied contract with an implied offer and implied acceptance by the parties". Adverting to the construction of the legislative entry 48 of list II, seventh schedule to the Government of India Act, 1935, the learned Judge observed that the entry had to be interpreted in a liberal spirit and not cut down by narrow technical considerations. "The entry in other words should not be shorn of all its content to leave a mere husk of legislative power. For the purposes of legislative such as on Sales-tax it is only necessary to see whether there is a sale, express or implied ..... The entry has its meaning and within its meaning there is a plenary power. If a sales express or implied is found to exist then the tax must follow".30. We are of the opinion that the true position in law is as is set out in the dissenting judgment of Hidayatullah, J., and that the view expressed by Kapur and Shah, JJ., in the majority judgment, with deference, cannot be considered as good law. Bachawat, J., in Andhra Sugars case was, with respect, right in cautioning that the majority judgment of Kapur and Shah, JJ., in New India Sugar Mills case should not be treated as an authority for the proposition that there can be no contract of sale under compulsion of a statute". Rather than saying what, in view of the growing uncertainty of the true legal position on the question, we are constrained to say namely, that the majority judgment in New India Sugar Mills case is not good law. Bachawat, J. preferred to adopt the not unfamiliar manner of confining the majority decision to "the special facts of that case".31. The majority judgment in New India Sugar Mills case is based predominantly on the decision of this court in Gannon Dunkerleys case to which we have referred at length in another context.Thus, the two reasons given the court in support of its conclusion was firstly, that a building contract there no agreement, express or implied, to "goods" and secondly, that property in the building materials does not pass in the materials regarded as "goods" but it passes as part of immovable property. In New India Sugar Mills case, the commodity with which the court was concerned was sugar and was delivered as sugar just as in the instant case, the commodity with which we are concerned is cement which was delivered as cement. That meets the first reason in Gannon Dunkerley case. As regards the second, it is quite clear that the tax was demanded after the commodity had charged hands or, putting it in the words of the Sale of Goods law, after property in it had passed. With great respect, therefore, the majority in New India Sugar Mills case was in error in saying that "the ratio decidendi of that decision Gannon Dunkerley case must govern this case". The question before us which was the very question involved in New India Sugar Mills viz., whether a transaction effected in accordance with the obligatory terms of a statute can amount to a "sale" did not arise in Gannon Dunkerley.This resume of cases, long as it is, may yet bear highlighting the true principle underlying the decisions of this court which have taken the view that a transaction which is effected in compliance with the obligatory terms of a statute may nevertheless be a sale in the eye of a law. The Indian Contract Act which was passed in 1872 contained provisions in its seventh chapter compressing Ss. 76 to 123 relating to sale of goods which were repeated on the enactment of a comprehensive law of sale of goods in 1930. The Contract Act drew inspiration from the English law of contract which is almost entirely the creation of English courts and whose growth is marked by features which are peculiar to the social and economic history of England. Historically, the English law of contract is largely founded upon the action on the case for assumpsit, where the essence of the matter was the undertaking. The necessity for acceptance of the undertaking or the promise led the earlier writers on legal theories to lay particular emphasis on the consensual nature of contractual obligations. It was out of the importance which political philosophers of the eighteenth century gave to human liberty that the doctrine was evolved that every persons should be free to pursue his own interest in the way he thinks best and therefore law ought to give effect to the will of the parties as expressed in their agreement. Adam Smith in his famous work on "The Wealth of Nations" propounded in 1776 the view that the freedom of contract must as far as possible be left unimpaired. Gradually, as would appear from Friedmanns Statement in Law in a Changing Society 1959, Ch. 4, freedom of contract - the freedom to contract on whatever terms might seem most advantageous to the individual - became a cornerstone of nineteenth century laissez faire economics. Champions of individualist social philosophy who protested against legal and social restrictions in order to advance the policies of expansion and exploitation pursued by industry and commerce won their battle and "freedom of contract was one of the trophies of victory" (see Ansons Law of Contract, 23rd Edn., page 3). The freedom and sanctity of contract thus became "the necessary instruments of laissez faire, and it was the function of the courts to foster the one and to vindicate the other. Where a man sowed, there he should be able to reap" (see Cheshire and Fifoots Law of Contract, 8th Edn., page 19). It is significant that the maxim itself - laissez faire, laissez passer - which derived from eighteenth century France - has been commonly attributed to Gournay, at first a merchant and later one of the intendants of commerce and a friend of Turgot. Turgot attributes the phrase laissez nous faire to another merchant, Legendre, who is said to have used it in impressing upon Colbert the desire on the part of the mercantile community for non-interference by the State. When Colbert asked a meeting of French businessmen what the State might do to assist them, Legendre pointedly replied, "laissez nous fair". The underlying assumption of the laissez fair doctrine turns on an optimistic view of the nature of the universe and on the conception of a "natural order" or system of economic harmonies which will prevail and work out to mankinds advantage in the absence of positive regulation (see International Encyclopedia of the Social Science 1968 Edn., edited by David L. Sills, Vol. 8 page 546, and Encyclopaedia of the Social Sciences, edited by Edwin R.A. Seligman, Vol. IX, pages 15-16).42. Towards the close of the nineteenth century it came to be realised that private enterprise, in order to be socially just, had to ensure economic equalityvery freedom of contract with its corollary, the freedom to compete, was merging into the freedom to compete, and in the last resort competition and combination were incompatible. Individualism was yielding to monopoly, where strange things might well be done in the name of liberty. The twentieth century has seen its progressive erosion on the one hand by opposed theory and on the other by conflicting practice. The background of the law, social political and economic, has changed. Laissez faire as an ideal has been supplanted by social security; and social security suggests status rather than contract. The State may thus compel persons to make contracts, as where, by a series of Road Traffic Acts from 1930 to 1960, a motorist must insure against third-party risks; it may, as by the Rent Restriction Acts, prevent one party to a contract from enforcing his rights under it; or it may empowers a tribunal either to reduce or to increase the rent payable under a lease. In many instances a statute prescribes the contents of the contract. The Moneylender, Act, 1927, dictates the terms of any loan caught by its provisions; the Carriage of Goods by Sea Act, 1924, contains 6 pages of rules to be incorporated in every contract for the carriage of goods by sea from any port in Great Britain or Northern Ireland to any other port; the Hire-Purchase Act, 1965, inserts into hire-purchase contracts a number of terms which the parties are forbidden to exclude; successive Landlord and Tenant Acts from 1927 to 1954 contain provisions expressed to apply notwithstanding and agreement to the contrary. The erosion of contract by statute continues briskly; and there are no immediate signs of aand Fifoots Law of Contract, 8th Edn., pages 21-22).43. In the words of Ansonof contract is a reasonable social ideal only to the extent that equality of bargaining power between contracting parties can be assumed, and no injury is done to the economic interests of the community at large. In the more complicated social and industrial conditions of a collectivist society it has creased to have much idealistic attraction. It is now realised that economic equality often does not exist in any real sense, and that individual interests have to be made to subserve those of the community. Hence there was been a fundamental change both in out social outlook and in the policy of the legislature towards contract, and the law today interferes at numerous points with the freedom of the parties to make what contract they like ...This intervention is especially necessary today when most contracts entered into by ordinary people are not the result of individual negotiation. It is not possible for a private person to settle the terms of his agreement with the British Railway Board or with the local electricity authority. The standard form contract is the rule. He must either accept the terms of this contract in toto or go without. Since however, it is not feasible to deprive oneself of such necessary services, the individual is compelled to accept on those terms. In view of this fact, it is quite clear that freedom of contract is now largely an illusion" (Ansons Law of Contract, 23rd Edn., pages 3-4).45. Anson is perhaps over-optimistic in saying that there has been a fundamental change in social outlook and in the legislative policy towards contract. Anyway, with the high ideals of the preamble and the directive principles of out Constitution there has to be such a fundamental change in judicial outlook. Instances given in Cheshire and Anson have their parallels in India too, wherein freedom of contract has largely become an illusion. The policy of out Parliament in regard to contracts including those involved in sale of goods has still to reflect recognition of the necessity for a change, which could be done by a suitable modification of the definition of "sale" of goods.46. It all began with the reliance in Gannon Dunkerley on the statement in the 8th Edition 1950 of Benjamin on Sal that to constitute a valid sale there must be a concurrence of four element one of which is "mutual assent". The statement is a reproduction of what the celebrated author had said in the 2nd and last edition prepared by himself in 1873. The majority judgment in New India Sugar Mills also derives sustenance from the same passage in Benjamins 8th edition. But as observed by Hidayatullah, J., his dissenting judgment in that case consent may be express or implied and offer and acceptance need not be in elementary form. It is interesting that General Editor of the 1974 edition "Benjamins Sale of Goods" says in the face that the editors decided to producer entirely new work partly because commercial institutions, modes of transport and payment, forms of contract, types of goods, market areas and marketing methods, and the extent of legislative and governmental regulation and intervention, had changed considerably since 1868, when the 1st edition of the book was published. The formulations in Benjamins 2nd edition relating to the conditions of a valid "sale" of goods, which are reproduced in the 8th edition, evidently require modification in the light of regulatory measures of social control. Hidayatullah, J., in his minority judgment referred to above, struck the new path; and Bachawat, J., who spoke for the court in Andhra Sugar, went a step ahead by declaring that "the contract is a contract of sale and purchase of cane, though the buyer is obliged to give his assent under compulsion of a statute". The concept of freedom of contract as observed by Hedge, J., in India Steel and Wire Products, has undergone a great deal of change even in those countries where it was considered as one of the basic economic requirements of a democratic life. Thus, in Ridge Nominees Ltd. 29, the Court of Appeal, while rejecting the argument that there was no sale because the essential element of mutual assent was lacking, held that the dissent of the shareholder was overriden by an assent which the statute imposed on him, fictional though it may be, that a sale may not always require the consensual element mentioned in Benjamin on Sale, 8th Edition, page 2, and that there may in truth be a compulsory sale of property with which the owner his compelled to part for a price against his will, Decisions in cases of "compulsory acquisition", where such acquisition is patent as in Kirkness or is inferred as in Chittar Mal fall in a separate and distinct class. The observations of Lord Reid in Kirkness that "sale" is a nomen juris the name of a particular consensual contract - have therefore to be understood in the context in which they were made, namely, the compulsory requisition cannot amount to sale. In Gannon Dunkerley, Venkatarama Aiyar, J., was influenced largely by these observations and by the definition of "sales" in the Benjamins 8th edition. Gannon Dunkerley involved an altogether different point and is not an authority for the proportion that there cannot at all be a contract of sale if the parties to a transaction are obliged to comply with the terms of a statute. Since we are putting in a nutshell what we have discussed earlier, we would like to reiterate in the interest of uniformity and certainty of law that with great deference, the majority decision in New India Sugar Mills is not good law. The true legal position is as is stated in the minority judgment in that case and in India Steel and Wire Products, Andhra Sugars, Salar Jung Sugar Mills and Oil and Natural Gas Commission. To the extent to which Cement Distributors Pvt. Ltd. is inconsistent with these judgment, it is also, with respect, not good law.47. The conclusion which, therefore, emerges is that the transaction between the appellant, M/s. Vishnu Agencies (Pvt.) Ltd., and the allottees are sales within the meaning of S. 2(g) of the Bengal Finance (Sales Tax) Act, 1941. For the same reason, transactions between the growers and procuring agents as also those between the rice millers on the one hand and the wholesalers or retailers on the other are sales within the meaning of S. 2 n) of the Andhra Pradesh General Sales Tax Act, 1957. The turnover is accordingly exigible to sales tax or purchase tax as the case may be. | 0 | 15,169 | 4,929 | ### 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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the policy of the legislature towards contract, and the law today interferes at numerous points with the freedom of the parties to make what contract they like ..."44. This intervention is especially necessary today when most contracts entered into by ordinary people are not the result of individual negotiation. It is not possible for a private person to settle the terms of his agreement with the British Railway Board or with the local electricity authority. The standard form contract is the rule. He must either accept the terms of this contract in toto or go without. Since however, it is not feasible to deprive oneself of such necessary services, the individual is compelled to accept on those terms. In view of this fact, it is quite clear that freedom of contract is now largely an illusion" (Ansons Law of Contract, 23rd Edn., pages 3-4).45. Anson is perhaps over-optimistic in saying that there has been a fundamental change in social outlook and in the legislative policy towards contract. Anyway, with the high ideals of the preamble and the directive principles of out Constitution there has to be such a fundamental change in judicial outlook. Instances given in Cheshire and Anson have their parallels in India too, wherein freedom of contract has largely become an illusion. The policy of out Parliament in regard to contracts including those involved in sale of goods has still to reflect recognition of the necessity for a change, which could be done by a suitable modification of the definition of "sale" of goods.46. It all began with the reliance in Gannon Dunkerley on the statement in the 8th Edition 1950 of Benjamin on Sal that to constitute a valid sale there must be a concurrence of four element one of which is "mutual assent". The statement is a reproduction of what the celebrated author had said in the 2nd and last edition prepared by himself in 1873. The majority judgment in New India Sugar Mills also derives sustenance from the same passage in Benjamins 8th edition. But as observed by Hidayatullah, J., his dissenting judgment in that case consent may be express or implied and offer and acceptance need not be in elementary form. It is interesting that General Editor of the 1974 edition "Benjamins Sale of Goods" says in the face that the editors decided to producer entirely new work partly because commercial institutions, modes of transport and payment, forms of contract, types of goods, market areas and marketing methods, and the extent of legislative and governmental regulation and intervention, had changed considerably since 1868, when the 1st edition of the book was published. The formulations in Benjamins 2nd edition relating to the conditions of a valid "sale" of goods, which are reproduced in the 8th edition, evidently require modification in the light of regulatory measures of social control. Hidayatullah, J., in his minority judgment referred to above, struck the new path; and Bachawat, J., who spoke for the court in Andhra Sugar, went a step ahead by declaring that "the contract is a contract of sale and purchase of cane, though the buyer is obliged to give his assent under compulsion of a statute". The concept of freedom of contract as observed by Hedge, J., in India Steel and Wire Products, has undergone a great deal of change even in those countries where it was considered as one of the basic economic requirements of a democratic life. Thus, in Ridge Nominees Ltd. 29, the Court of Appeal, while rejecting the argument that there was no sale because the essential element of mutual assent was lacking, held that the dissent of the shareholder was overriden by an assent which the statute imposed on him, fictional though it may be, that a sale may not always require the consensual element mentioned in Benjamin on Sale, 8th Edition, page 2, and that there may in truth be a compulsory sale of property with which the owner his compelled to part for a price against his will, Decisions in cases of "compulsory acquisition", where such acquisition is patent as in Kirkness or is inferred as in Chittar Mal fall in a separate and distinct class. The observations of Lord Reid in Kirkness that "sale" is a nomen juris the name of a particular consensual contract - have therefore to be understood in the context in which they were made, namely, the compulsory requisition cannot amount to sale. In Gannon Dunkerley, Venkatarama Aiyar, J., was influenced largely by these observations and by the definition of "sales" in the Benjamins 8th edition. Gannon Dunkerley involved an altogether different point and is not an authority for the proportion that there cannot at all be a contract of sale if the parties to a transaction are obliged to comply with the terms of a statute. Since we are putting in a nutshell what we have discussed earlier, we would like to reiterate in the interest of uniformity and certainty of law that with great deference, the majority decision in New India Sugar Mills is not good law. The true legal position is as is stated in the minority judgment in that case and in India Steel and Wire Products, Andhra Sugars, Salar Jung Sugar Mills and Oil and Natural Gas Commission. To the extent to which Cement Distributors Pvt. Ltd. is inconsistent with these judgment, it is also, with respect, not good law.47. The conclusion which, therefore, emerges is that the transaction between the appellant, M/s. Vishnu Agencies (Pvt.) Ltd., and the allottees are sales within the meaning of S. 2(g) of the Bengal Finance (Sales Tax) Act, 1941. For the same reason, transactions between the growers and procuring agents as also those between the rice millers on the one hand and the wholesalers or retailers on the other are sales within the meaning of S. 2 n) of the Andhra Pradesh General Sales Tax Act, 1957. The turnover is accordingly exigible to sales tax or purchase tax as the case may be.
### Response:
0
### Explanation:
in the policy of the legislature towards contract, and the law today interferes at numerous points with the freedom of the parties to make what contract they like ...This intervention is especially necessary today when most contracts entered into by ordinary people are not the result of individual negotiation. It is not possible for a private person to settle the terms of his agreement with the British Railway Board or with the local electricity authority. The standard form contract is the rule. He must either accept the terms of this contract in toto or go without. Since however, it is not feasible to deprive oneself of such necessary services, the individual is compelled to accept on those terms. In view of this fact, it is quite clear that freedom of contract is now largely an illusion" (Ansons Law of Contract, 23rd Edn., pages 3-4).45. Anson is perhaps over-optimistic in saying that there has been a fundamental change in social outlook and in the legislative policy towards contract. Anyway, with the high ideals of the preamble and the directive principles of out Constitution there has to be such a fundamental change in judicial outlook. Instances given in Cheshire and Anson have their parallels in India too, wherein freedom of contract has largely become an illusion. The policy of out Parliament in regard to contracts including those involved in sale of goods has still to reflect recognition of the necessity for a change, which could be done by a suitable modification of the definition of "sale" of goods.46. It all began with the reliance in Gannon Dunkerley on the statement in the 8th Edition 1950 of Benjamin on Sal that to constitute a valid sale there must be a concurrence of four element one of which is "mutual assent". The statement is a reproduction of what the celebrated author had said in the 2nd and last edition prepared by himself in 1873. The majority judgment in New India Sugar Mills also derives sustenance from the same passage in Benjamins 8th edition. But as observed by Hidayatullah, J., his dissenting judgment in that case consent may be express or implied and offer and acceptance need not be in elementary form. It is interesting that General Editor of the 1974 edition "Benjamins Sale of Goods" says in the face that the editors decided to producer entirely new work partly because commercial institutions, modes of transport and payment, forms of contract, types of goods, market areas and marketing methods, and the extent of legislative and governmental regulation and intervention, had changed considerably since 1868, when the 1st edition of the book was published. The formulations in Benjamins 2nd edition relating to the conditions of a valid "sale" of goods, which are reproduced in the 8th edition, evidently require modification in the light of regulatory measures of social control. Hidayatullah, J., in his minority judgment referred to above, struck the new path; and Bachawat, J., who spoke for the court in Andhra Sugar, went a step ahead by declaring that "the contract is a contract of sale and purchase of cane, though the buyer is obliged to give his assent under compulsion of a statute". The concept of freedom of contract as observed by Hedge, J., in India Steel and Wire Products, has undergone a great deal of change even in those countries where it was considered as one of the basic economic requirements of a democratic life. Thus, in Ridge Nominees Ltd. 29, the Court of Appeal, while rejecting the argument that there was no sale because the essential element of mutual assent was lacking, held that the dissent of the shareholder was overriden by an assent which the statute imposed on him, fictional though it may be, that a sale may not always require the consensual element mentioned in Benjamin on Sale, 8th Edition, page 2, and that there may in truth be a compulsory sale of property with which the owner his compelled to part for a price against his will, Decisions in cases of "compulsory acquisition", where such acquisition is patent as in Kirkness or is inferred as in Chittar Mal fall in a separate and distinct class. The observations of Lord Reid in Kirkness that "sale" is a nomen juris the name of a particular consensual contract - have therefore to be understood in the context in which they were made, namely, the compulsory requisition cannot amount to sale. In Gannon Dunkerley, Venkatarama Aiyar, J., was influenced largely by these observations and by the definition of "sales" in the Benjamins 8th edition. Gannon Dunkerley involved an altogether different point and is not an authority for the proportion that there cannot at all be a contract of sale if the parties to a transaction are obliged to comply with the terms of a statute. Since we are putting in a nutshell what we have discussed earlier, we would like to reiterate in the interest of uniformity and certainty of law that with great deference, the majority decision in New India Sugar Mills is not good law. The true legal position is as is stated in the minority judgment in that case and in India Steel and Wire Products, Andhra Sugars, Salar Jung Sugar Mills and Oil and Natural Gas Commission. To the extent to which Cement Distributors Pvt. Ltd. is inconsistent with these judgment, it is also, with respect, not good law.47. The conclusion which, therefore, emerges is that the transaction between the appellant, M/s. Vishnu Agencies (Pvt.) Ltd., and the allottees are sales within the meaning of S. 2(g) of the Bengal Finance (Sales Tax) Act, 1941. For the same reason, transactions between the growers and procuring agents as also those between the rice millers on the one hand and the wholesalers or retailers on the other are sales within the meaning of S. 2 n) of the Andhra Pradesh General Sales Tax Act, 1957. The turnover is accordingly exigible to sales tax or purchase tax as the case may be.
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Bhagirati K.R. Naik (Smt.) Vs. Oriental Fire and General Insurance Co. Ltd | S.P. Kurdukar, J. Leave granted. 2. Respondent 1 Insurance Company is represented by its counsel. It is the main contesting respondent. Respondent 2 is served and he has not chosen to contest this proceeding. In our view, the order of the High Court challenged in this appeal cannot be sustained for obvious reasons. The breadwinner in the family, Kumari Nalini Nayak who was maintaining her old mother and blind mother met with a motor accident and got killed on 22.6.1984. The result was that the appellant-claimants were left destitutes. They filed a claim petition before the Motor Accidents Claims Tribunal claiming a total compensation of Rs. 2 lakhs. On adjudication of the claim the Tribunal awarded a sum of Rs. 1,32,000 as compensation. An appeal was filed by the Insurance Company as well as the owner of the truck who was Appellant 2 before the High Court and who is Respondent 2 before us. The High Court in the said appeal reduced the compensation to Rs. 1 lakh. In our view, the said decision of the High Court cannot be sustained. Kumari Nalini Nayak who was the breadwinner of the family was drawing a salary of Rs. 1767 at the time of her death. She had a lucrative earning career before her if she had not died prematurely. Under these circumstances, considering her future economic prospects, if she would not have died, at least Rs. 1,000 per month would have been made available to the claimants i.e. the old mother and blind brother as Kumari Nalini Nayak was a spinster and she had decided not to marry in order to support her mother and blind brother. Thus, applying multiplicand of Rs. 1,000 per month substantial amount would have been available to the claimants even beyond Rs. 1,32,000 as awarded by the Tribunal. However, the claimants were satisfied with the amount of Rs. 1,32,000 and they had not filed any cross-appeal or cross-objection against the order of the Tribunal. Under these circumstances, we fail to appreciate as to how the High Court felt satisfied in reducing the compensation amount of Rs. 1,32,000 as awarded by the Tribunal to Rs. 1 lakh. Only on this short ground the compensation amount of Rs. 1,32,000 awarded by the Tribunal to the claimants is restored. Respondent 1 Insurance Company has already deposited Rs. 1 lakh. Balance amount of Rs. 32,000 with the accrued interest shall be deposited by Respondent 1 within six weeks from today before the Tribunal. As the Tribunal has directed investment of an amount of Rs. 90,000, therefore, the balance amount of Rs. 10,000 as well as the additional amount of Rs. 32,000 as per the present order shall be paid over to the appellants with interest as accruing due. | 1[ds]Thus, applying multiplicand of Rs. 1,000 per month substantial amount would have been available to the claimants even beyond Rs. 1,32,000 as awarded by the Tribunal. However, the claimants were satisfied with the amount of Rs. 1,32,000 and they had not filed anyn against the order of the Tribunal. Under these circumstances, we fail to appreciate as to how the High Court felt satisfied in reducing the compensation amount of Rs. 1,32,000 as awarded by the Tribunal to Rs. 1 lakh. Only on this short ground the compensation amount of Rs. 1,32,000 awarded by the Tribunal to the claimants is restored. Respondent 1 Insurance Company has already deposited Rs. 1 lakh. Balance amount of Rs. 32,000 with the accrued interest shall be deposited by Respondent 1 within six weeks from today before the Tribunal. As the Tribunal has directed investment of an amount of Rs. 90,000, therefore, the balance amount of Rs. 10,000 as well as the additional amount of Rs. 32,000 as per the present order shall be paid over to the appellants with interest as accruing due. | 1 | 514 | 206 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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S.P. Kurdukar, J. Leave granted. 2. Respondent 1 Insurance Company is represented by its counsel. It is the main contesting respondent. Respondent 2 is served and he has not chosen to contest this proceeding. In our view, the order of the High Court challenged in this appeal cannot be sustained for obvious reasons. The breadwinner in the family, Kumari Nalini Nayak who was maintaining her old mother and blind mother met with a motor accident and got killed on 22.6.1984. The result was that the appellant-claimants were left destitutes. They filed a claim petition before the Motor Accidents Claims Tribunal claiming a total compensation of Rs. 2 lakhs. On adjudication of the claim the Tribunal awarded a sum of Rs. 1,32,000 as compensation. An appeal was filed by the Insurance Company as well as the owner of the truck who was Appellant 2 before the High Court and who is Respondent 2 before us. The High Court in the said appeal reduced the compensation to Rs. 1 lakh. In our view, the said decision of the High Court cannot be sustained. Kumari Nalini Nayak who was the breadwinner of the family was drawing a salary of Rs. 1767 at the time of her death. She had a lucrative earning career before her if she had not died prematurely. Under these circumstances, considering her future economic prospects, if she would not have died, at least Rs. 1,000 per month would have been made available to the claimants i.e. the old mother and blind brother as Kumari Nalini Nayak was a spinster and she had decided not to marry in order to support her mother and blind brother. Thus, applying multiplicand of Rs. 1,000 per month substantial amount would have been available to the claimants even beyond Rs. 1,32,000 as awarded by the Tribunal. However, the claimants were satisfied with the amount of Rs. 1,32,000 and they had not filed any cross-appeal or cross-objection against the order of the Tribunal. Under these circumstances, we fail to appreciate as to how the High Court felt satisfied in reducing the compensation amount of Rs. 1,32,000 as awarded by the Tribunal to Rs. 1 lakh. Only on this short ground the compensation amount of Rs. 1,32,000 awarded by the Tribunal to the claimants is restored. Respondent 1 Insurance Company has already deposited Rs. 1 lakh. Balance amount of Rs. 32,000 with the accrued interest shall be deposited by Respondent 1 within six weeks from today before the Tribunal. As the Tribunal has directed investment of an amount of Rs. 90,000, therefore, the balance amount of Rs. 10,000 as well as the additional amount of Rs. 32,000 as per the present order shall be paid over to the appellants with interest as accruing due.
### Response:
1
### Explanation:
Thus, applying multiplicand of Rs. 1,000 per month substantial amount would have been available to the claimants even beyond Rs. 1,32,000 as awarded by the Tribunal. However, the claimants were satisfied with the amount of Rs. 1,32,000 and they had not filed anyn against the order of the Tribunal. Under these circumstances, we fail to appreciate as to how the High Court felt satisfied in reducing the compensation amount of Rs. 1,32,000 as awarded by the Tribunal to Rs. 1 lakh. Only on this short ground the compensation amount of Rs. 1,32,000 awarded by the Tribunal to the claimants is restored. Respondent 1 Insurance Company has already deposited Rs. 1 lakh. Balance amount of Rs. 32,000 with the accrued interest shall be deposited by Respondent 1 within six weeks from today before the Tribunal. As the Tribunal has directed investment of an amount of Rs. 90,000, therefore, the balance amount of Rs. 10,000 as well as the additional amount of Rs. 32,000 as per the present order shall be paid over to the appellants with interest as accruing due.
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N. Kt. Sivalingam Chettiar Vs. Commissioner of Income Tax, Madras | under section 34(1)(a) of the Income-tax Act for the assessment year 1946-47. This plea was rejected by the departmental authorities and the Tribunal. They held that the proceeding for assessment initiated pursuant to the finding of the Appellate Assistant Commissioner in the earlier proceeding was saved by the second proviso to section 34(3) of the Income-tax Act. The High Court, at the hearing of the reference, also accepted that view. The High Court observed" What the second proviso to section 34(3) contemplates is a different period of account of the same assessee or a different assessee:- Proviso (2) to section 34(3) enacts an exception to that provision (sub-section (1) to section 34) and it enables a reassessment to be made in such cases, if it arises in consequence of, or to give effect to, any finding or direction contained in an order under section 31, section 33, section 33A, section 33B, section 66 or section 66A. A plain reading of the section would show that the Income-tax Officer can commence proceedings if there had been a finding by the authority concerned under any one of the sections mentioned above." 5. In our judgment, the High Court was in error in holding that a finding or direction by an appellate authority in an order relating to assessment of one year may warrant the avoidance of the bar of limitation under section 34(1) of the Act against initiation of proceedings for assessment for another assessment year against the same assessee or against another assessee. This court has decided in Income-tax Officer, A-Ward, Sitapur v. Murlidhar Bhagwan Das that the jurisdiction of the Appellate Assistant Commissioner under section 31 is strictly confined to the assessment order of the particular year under appeal ; that the assessment or reassessment made in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33A, section 33B, section 66 or section 66A must necessarily relate to the assessment of the year under appeal, revision or reference as the case may be ; that the second proviso to section 34(3) only lifts the bar of limitation and does not enlarge the jurisdiction of the Income-tax Officer under the relevant sections ; and that the expressions "finding" and "direction" in the second proviso to section 34(3) mean respectively, a finding necessary for giving relief in respect of the assessment for the year in question, and a direction which the appellate or revisional authority, as the case may be, is empowered to give under the sections mentioned in that proviso. A " finding " therefore may only be that which was necessary for the disposal of an appeal in respect of an assessment of a particular year. The Appellate Assistant Commissioner may hold, on the evidence, that the income shown by the assessee was not the income for the relevant year and thereby exclude that income from the assessment of the year under appeal. The finding in that context is that the income did not belong to the relevant year. He may incidentally find that the income belonged to another year, but that is not a finding necessary for, the disposal of an appeal in respect of the year of assessment in questionCounsel for the Commissioner contends that the principle of Murlidhar Bhagwan Dass case does not govern the present case, because in that case proceedings for assessment were commenced in consequence of or to give effect to an express direction of the Appellate Assistant Commissioner, and it was held by this court that a direction not necessary for the disposal of the appeal in respect of the assessment of the year in question before him was inoperative to remove the bar of limitation. Counsel says that, where a mere finding is recorded by the appellate or revisional authority different considerations arise and the bar of limitation prescribed by section 34 would be removed if a proceeding be commenced for assessment in consequence of or to give effect to the finding. This argument has, in our judgment, no force 6. In interpreting the second proviso to section 34(3) Subba Rao J., in delivering the judgment of the majority, observed in Murlidhar Bhagwan Dass case: " A finding.......can be only that which is necessary for the disposal of an appeal in respect of an assessment of a particular year. The Appellate Assistant Commissioner may hold, on the evidence, that the income shown by the assessee is not the income for the relevant year and thereby exclude that income from the assessment of the year under appeal. The finding in that context is that that income does not belong to the relevant year. He may incidentally find that the income belongs to another year, but that is not a finding necessary for the disposal of an appeal in respect of the year of assessment in question......Therefore, the expression finding as well as the expression direction can be given full meaning, namely, that the finding is a finding necessary for giving relief in respect of the assessment of the year in question and the direction is a direction which the appellate or revisional authority, as the case may be, is empowered to give under the sections mentioned therein."It is clear from the observations made by this court that a finding within the second proviso to section 34(3) must be necessary for giving relief in respect of the assessment of the year in question. The court in that case expressly lent approval to the observations of the Allahabad High Court in Pt. Hazari Lal v. Income-tax Officer, Kanpur that the word " finding " only covers " material questions which arise in a particular case for decision by the authority hearing the case or the appeal which, being necessary for passing the final order or giving the final decision in the appeal, has been the subject of controversy between the interested parties or on which the parties concerned have been given a hearing." | 1[ds]5. In our judgment, the High Court was in error in holding that a finding or direction by an appellate authority in an order relating to assessment of one year may warrant the avoidance of the bar of limitation under section 34(1) of the Act against initiation of proceedings for assessment for another assessment year against the same assessee or against another assesseeA " finding " therefore may only be that which was necessary for the disposal of an appeal in respect of an assessment of a particular year. The Appellate Assistant Commissioner may hold, on the evidence, that the income shown by the assessee was not the income for the relevant year and thereby exclude that income from the assessment of the year under appeal. The finding in that context is that the income did not belong to the relevant year. He may incidentally find that the income belonged to another year, but that is not a finding necessary for, the disposal of an appeal in respect of the year of assessment in questionCounsel for the Commissioner contends that the principle of Murlidhar Bhagwan Dass case does not govern the present case, because in that case proceedings for assessment were commenced in consequence of or to give effect to an express direction of the Appellate Assistant Commissioner, and it was held by this court that a direction not necessary for the disposal of the appeal in respect of the assessment of the year in question before him was inoperative to remove the bar of limitation. Counsel says that, where a mere finding is recorded by the appellate or revisional authority different considerations arise and the bar of limitation prescribed by section 34 would be removed if a proceeding be commenced for assessment in consequence of or to give effect to the finding. This argument has, in our judgment, no force | 1 | 1,522 | 334 | ### 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:
under section 34(1)(a) of the Income-tax Act for the assessment year 1946-47. This plea was rejected by the departmental authorities and the Tribunal. They held that the proceeding for assessment initiated pursuant to the finding of the Appellate Assistant Commissioner in the earlier proceeding was saved by the second proviso to section 34(3) of the Income-tax Act. The High Court, at the hearing of the reference, also accepted that view. The High Court observed" What the second proviso to section 34(3) contemplates is a different period of account of the same assessee or a different assessee:- Proviso (2) to section 34(3) enacts an exception to that provision (sub-section (1) to section 34) and it enables a reassessment to be made in such cases, if it arises in consequence of, or to give effect to, any finding or direction contained in an order under section 31, section 33, section 33A, section 33B, section 66 or section 66A. A plain reading of the section would show that the Income-tax Officer can commence proceedings if there had been a finding by the authority concerned under any one of the sections mentioned above." 5. In our judgment, the High Court was in error in holding that a finding or direction by an appellate authority in an order relating to assessment of one year may warrant the avoidance of the bar of limitation under section 34(1) of the Act against initiation of proceedings for assessment for another assessment year against the same assessee or against another assessee. This court has decided in Income-tax Officer, A-Ward, Sitapur v. Murlidhar Bhagwan Das that the jurisdiction of the Appellate Assistant Commissioner under section 31 is strictly confined to the assessment order of the particular year under appeal ; that the assessment or reassessment made in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33A, section 33B, section 66 or section 66A must necessarily relate to the assessment of the year under appeal, revision or reference as the case may be ; that the second proviso to section 34(3) only lifts the bar of limitation and does not enlarge the jurisdiction of the Income-tax Officer under the relevant sections ; and that the expressions "finding" and "direction" in the second proviso to section 34(3) mean respectively, a finding necessary for giving relief in respect of the assessment for the year in question, and a direction which the appellate or revisional authority, as the case may be, is empowered to give under the sections mentioned in that proviso. A " finding " therefore may only be that which was necessary for the disposal of an appeal in respect of an assessment of a particular year. The Appellate Assistant Commissioner may hold, on the evidence, that the income shown by the assessee was not the income for the relevant year and thereby exclude that income from the assessment of the year under appeal. The finding in that context is that the income did not belong to the relevant year. He may incidentally find that the income belonged to another year, but that is not a finding necessary for, the disposal of an appeal in respect of the year of assessment in questionCounsel for the Commissioner contends that the principle of Murlidhar Bhagwan Dass case does not govern the present case, because in that case proceedings for assessment were commenced in consequence of or to give effect to an express direction of the Appellate Assistant Commissioner, and it was held by this court that a direction not necessary for the disposal of the appeal in respect of the assessment of the year in question before him was inoperative to remove the bar of limitation. Counsel says that, where a mere finding is recorded by the appellate or revisional authority different considerations arise and the bar of limitation prescribed by section 34 would be removed if a proceeding be commenced for assessment in consequence of or to give effect to the finding. This argument has, in our judgment, no force 6. In interpreting the second proviso to section 34(3) Subba Rao J., in delivering the judgment of the majority, observed in Murlidhar Bhagwan Dass case: " A finding.......can be only that which is necessary for the disposal of an appeal in respect of an assessment of a particular year. The Appellate Assistant Commissioner may hold, on the evidence, that the income shown by the assessee is not the income for the relevant year and thereby exclude that income from the assessment of the year under appeal. The finding in that context is that that income does not belong to the relevant year. He may incidentally find that the income belongs to another year, but that is not a finding necessary for the disposal of an appeal in respect of the year of assessment in question......Therefore, the expression finding as well as the expression direction can be given full meaning, namely, that the finding is a finding necessary for giving relief in respect of the assessment of the year in question and the direction is a direction which the appellate or revisional authority, as the case may be, is empowered to give under the sections mentioned therein."It is clear from the observations made by this court that a finding within the second proviso to section 34(3) must be necessary for giving relief in respect of the assessment of the year in question. The court in that case expressly lent approval to the observations of the Allahabad High Court in Pt. Hazari Lal v. Income-tax Officer, Kanpur that the word " finding " only covers " material questions which arise in a particular case for decision by the authority hearing the case or the appeal which, being necessary for passing the final order or giving the final decision in the appeal, has been the subject of controversy between the interested parties or on which the parties concerned have been given a hearing."
### Response:
1
### Explanation:
5. In our judgment, the High Court was in error in holding that a finding or direction by an appellate authority in an order relating to assessment of one year may warrant the avoidance of the bar of limitation under section 34(1) of the Act against initiation of proceedings for assessment for another assessment year against the same assessee or against another assesseeA " finding " therefore may only be that which was necessary for the disposal of an appeal in respect of an assessment of a particular year. The Appellate Assistant Commissioner may hold, on the evidence, that the income shown by the assessee was not the income for the relevant year and thereby exclude that income from the assessment of the year under appeal. The finding in that context is that the income did not belong to the relevant year. He may incidentally find that the income belonged to another year, but that is not a finding necessary for, the disposal of an appeal in respect of the year of assessment in questionCounsel for the Commissioner contends that the principle of Murlidhar Bhagwan Dass case does not govern the present case, because in that case proceedings for assessment were commenced in consequence of or to give effect to an express direction of the Appellate Assistant Commissioner, and it was held by this court that a direction not necessary for the disposal of the appeal in respect of the assessment of the year in question before him was inoperative to remove the bar of limitation. Counsel says that, where a mere finding is recorded by the appellate or revisional authority different considerations arise and the bar of limitation prescribed by section 34 would be removed if a proceeding be commenced for assessment in consequence of or to give effect to the finding. This argument has, in our judgment, no force
|
Bank of Baroda Vs. M/s Karwa Trading Company & Anr | for public auction or inviting quotations or tender from public or private treaty for transfer by way of lease assignment or sale of the secured assets. In the present case though as on 07.01.2013 the dues were Rs. Rs.1,85,37,218.80/- and without the secured property was sold in a public auction the Division Bench of the High Court has directed to release the mortgaged property and handover the possession along with original title deeds to the borrower on the borrower depositing/paying a total sum of Rs.65.65 lakhs only. At this stage, it is required to be noted that Rs.65.65 lakhs was not the amount realized by selling the mortgaged property in a public auction. It was only a highest bid received and before any further auction proceedings were conducted, the DRT passed an interim order directing to handover the possession and handover the original title deeds on payment of Rs.48.65 lakhs which was the base price, which was the subject matter before the DRAT and before the learned Single Judge. Therefore, the borrower did not deposit and was not ready to deposit the entire amount of dues with secured creditor with all costs, charges and expenses incurred by the secured creditor. Therefore, it was open for the secured creditor to sell the mortgaged property which was put as a security and realize the amount by selling it in a public auction. At this stage, it is required to be noted that even as per the Division Bench of the High Court the borrower made an offer to deposit/pay Rs.71 lakhs as a purchaser and not by way of redeeming the mortgaged property. Therefore, the impugned judgment and order passed by the Division Bench of the High Court directing to release the mortgaged property/secured property and to handover the possession as well as the original title deeds to the borrower on payment of a total sum of Rs.65.65 lakhs only is contrary to Sub-section (8) of Section 13 of the SARFAESI Act. 7. Even otherwise on making the payment i.e. Rs.65.65 lakhs against the total dues Rs.1,85,37,218.80/- as on 07.01.2013 the entire liability outstanding against the borrower cannot be said to have been discharged. Even if the mortgaged property would have been sold in a public auction say for an amount of Rs.71 lakhs and the bank has realized Rs.71 lakhs by selling the mortgaged property, in that case also the liability of the borrower to pay the balance amount would still continue. By selling the mortgaged property/secured property it cannot be said that the borrower is discharged from the entire liability outstanding against him. The liability of the borrower with respect to the balance outstanding dues would still be continued. Therefore, the Division Bench of the High Court has erred in directing to release the mortgaged property/secured property and to handover the possession along with the original title deeds to the borrower on payment of a total sum of Rs.65.65 lakhs only. 7.1 At the cost of repetition it is observed that as such the bank had already initiated the proceedings under Section 13 of the SARFAESI Act and even the possession of the mortgaged property was taken over by the bank under Section 14 of the SARFAESI Act and thereafter the mortgaged property was put to sale by a public auction and at that stage the borrower wanted to stall the auction proceedings and restrain the secured creditor/bank from selling the property. In such a situation the bank/secured creditor can be restrained from selling the mortgaged property/secured property where the borrower deposits entire dues that was Rs.1,85,37,218.80/- as on 07.01.2013 with the secured creditor. Therefore, the DRT in its order dated 17.01.2014 which as such was an interim relief order pending the appeal under Section 17 of the SARFAESI Act was not justified in directing to release the mortgaged property and handover the possession along with the original title deeds to the borrower on payment of Rs.48.65 lakhs only which was the base price/ reserve price, which the Division Bench of the High Court has increased to Rs.65.65 lakhs on the ground that the highest bid received was Rs.71 lakhs (which was not materialized as the highest bidder did not come forward). Unless and until the borrower was ready to deposit/pay the entire amount payable together with all costs and expenses with the secured creditor, the borrower cannot be discharged from the entire liability outstanding. Therefore, as such no order could have been passed either by the DRT and/or by the Division Bench of the High Court to discharge the borrower from the entire liability outstanding and to discharge the mortgaged property and handover the possession along with original title deeds to the borrower. As such the learned Single Judge rightly set aside the orders passed by the DRT as well as by the DRAT considering Section 13(8) of the SARFAESI Act. The learned Single Judge was right in setting aside the order passed by the DRT confirmed by the DRAT. The Division Bench of the High Court has erred in interfering with the order passed by the learned Single Judge and has erred in directing to release the mortgaged property/secured property and handover the possession along with the original title deeds to the borrower on payment of a total sum of Rs.65.65 lakhs only. 7.2 However, at the same time the order dated 17.01.2014 passed by the DRT was an interim relief order in SA No.9/2014 and therefore even if the interim relief order is set aside by this Court the appeal/application will have to be decided and disposed of on merits and on whatever grounds which may be available to the borrower. However, at the same time the bank cannot be restrained from selling the mortgaged property by holding the public auction and realise the amount and recover the outstanding dues, unless the borrower deposits/pays the entire amount due and payable along with the costs incurred by the secured creditor as per Section 13(f) of the SARFAESI Act. | 1[ds]6.1 From the impugned judgment and order passed by the High Court it appears that the Division Bench of the High Court has treated and/or considered the market value of the mortgaged property at Rs.71 lakhs. The DRT when initially granted the interim relief in favour of the borrower which was the subject matter before the DRAT and the learned Single Judge and thereafter before the Division Bench of the High Court, directed to handover the possession of the mortgaged property to the borrower on payment of Rs.48.65 lakhs which was the reserve price/base price. The possession was taken over by the bank under the provisions of the SARFAESI Act and after following the proceedings as required under Section 13 of the SARFAESI Act, the mortgaged property was put to auction and at that stage the borrower preferred an appeal/application before the DRT under Section 17 of the SARFAESI Act and as such the said appeal can be said to be technically pending as the order dated 17.01.2014 passed by the DRT was an interim order. When the auction proceedings were initiated under Section 13 of the SARFAESI Act and after the bank took over the possession under Section 14 of the SARFAESI Act as per Sub-section (8) of Section 13 of the SARFAESI Act the secured asset shall not be sold and/or transferred by the secured creditor, where the amount dues of the secured creditor together with all costs, charges and expenses incurred by him is tendered by the borrower or debtor to the secured creditor at any time before the date of publication of notice for public auction or inviting quotations or tender from public or private treaty for transfer by way of lease assignment or sale of the secured assets. In the present case though as on 07.01.2013 the dues were Rs. Rs.1,85,37,218.80/- and without the secured property was sold in a public auction the Division Bench of the High Court has directed to release the mortgaged property and handover the possession along with original title deeds to the borrower on the borrower depositing/paying a total sum of Rs.65.65 lakhs only. At this stage, it is required to be noted that Rs.65.65 lakhs was not the amount realized by selling the mortgaged property in a public auction. It was only a highest bid received and before any further auction proceedings were conducted, the DRT passed an interim order directing to handover the possession and handover the original title deeds on payment of Rs.48.65 lakhs which was the base price, which was the subject matter before the DRAT and before the learned Single Judge. Therefore, the borrower did not deposit and was not ready to deposit the entire amount of dues with secured creditor with all costs, charges and expenses incurred by the secured creditor. Therefore, it was open for the secured creditor to sell the mortgaged property which was put as a security and realize the amount by selling it in a public auction. At this stage, it is required to be noted that even as per the Division Bench of the High Court the borrower made an offer to deposit/pay Rs.71 lakhs as a purchaser and not by way of redeeming the mortgaged property. Therefore, the impugned judgment and order passed by the Division Bench of the High Court directing to release the mortgaged property/secured property and to handover the possession as well as the original title deeds to the borrower on payment of a total sum of Rs.65.65 lakhs only is contrary to Sub-section (8) of Section 13 of the SARFAESI Act.7. Even otherwise on making the payment i.e. Rs.65.65 lakhs against the total dues Rs.1,85,37,218.80/- as on 07.01.2013 the entire liability outstanding against the borrower cannot be said to have been discharged. Even if the mortgaged property would have been sold in a public auction say for an amount of Rs.71 lakhs and the bank has realized Rs.71 lakhs by selling the mortgaged property, in that case also the liability of the borrower to pay the balance amount would still continue. By selling the mortgaged property/secured property it cannot be said that the borrower is discharged from the entire liability outstanding against him. The liability of the borrower with respect to the balance outstanding dues would still be continued. Therefore, the Division Bench of the High Court has erred in directing to release the mortgaged property/secured property and to handover the possession along with the original title deeds to the borrower on payment of a total sum of Rs.65.65 lakhs only.7.1 At the cost of repetition it is observed that as such the bank had already initiated the proceedings under Section 13 of the SARFAESI Act and even the possession of the mortgaged property was taken over by the bank under Section 14 of the SARFAESI Act and thereafter the mortgaged property was put to sale by a public auction and at that stage the borrower wanted to stall the auction proceedings and restrain the secured creditor/bank from selling the property. In such a situation the bank/secured creditor can be restrained from selling the mortgaged property/secured property where the borrower deposits entire dues that was Rs.1,85,37,218.80/- as on 07.01.2013 with the secured creditor. Therefore, the DRT in its order dated 17.01.2014 which as such was an interim relief order pending the appeal under Section 17 of the SARFAESI Act was not justified in directing to release the mortgaged property and handover the possession along with the original title deeds to the borrower on payment of Rs.48.65 lakhs only which was the base price/ reserve price, which the Division Bench of the High Court has increased to Rs.65.65 lakhs on the ground that the highest bid received was Rs.71 lakhs (which was not materialized as the highest bidder did not come forward). Unless and until the borrower was ready to deposit/pay the entire amount payable together with all costs and expenses with the secured creditor, the borrower cannot be discharged from the entire liability outstanding. Therefore, as such no order could have been passed either by the DRT and/or by the Division Bench of the High Court to discharge the borrower from the entire liability outstanding and to discharge the mortgaged property and handover the possession along with original title deeds to the borrower. As such the learned Single Judge rightly set aside the orders passed by the DRT as well as by the DRAT considering Section 13(8) of the SARFAESI Act. The learned Single Judge was right in setting aside the order passed by the DRT confirmed by the DRAT. The Division Bench of the High Court has erred in interfering with the order passed by the learned Single Judge and has erred in directing to release the mortgaged property/secured property and handover the possession along with the original title deeds to the borrower on payment of a total sum of Rs.65.65 lakhs only.7.2 However, at the same time the order dated 17.01.2014 passed by the DRT was an interim relief order in SA No.9/2014 and therefore even if the interim relief order is set aside by this Court the appeal/application will have to be decided and disposed of on merits and on whatever grounds which may be available to the borrower. However, at the same time the bank cannot be restrained from selling the mortgaged property by holding the public auction and realise the amount and recover the outstanding dues, unless the borrower deposits/pays the entire amount due and payable along with the costs incurred by the secured creditor as per Section 13(f) of the SARFAESI Act. | 1 | 3,816 | 1,331 | ### 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:
for public auction or inviting quotations or tender from public or private treaty for transfer by way of lease assignment or sale of the secured assets. In the present case though as on 07.01.2013 the dues were Rs. Rs.1,85,37,218.80/- and without the secured property was sold in a public auction the Division Bench of the High Court has directed to release the mortgaged property and handover the possession along with original title deeds to the borrower on the borrower depositing/paying a total sum of Rs.65.65 lakhs only. At this stage, it is required to be noted that Rs.65.65 lakhs was not the amount realized by selling the mortgaged property in a public auction. It was only a highest bid received and before any further auction proceedings were conducted, the DRT passed an interim order directing to handover the possession and handover the original title deeds on payment of Rs.48.65 lakhs which was the base price, which was the subject matter before the DRAT and before the learned Single Judge. Therefore, the borrower did not deposit and was not ready to deposit the entire amount of dues with secured creditor with all costs, charges and expenses incurred by the secured creditor. Therefore, it was open for the secured creditor to sell the mortgaged property which was put as a security and realize the amount by selling it in a public auction. At this stage, it is required to be noted that even as per the Division Bench of the High Court the borrower made an offer to deposit/pay Rs.71 lakhs as a purchaser and not by way of redeeming the mortgaged property. Therefore, the impugned judgment and order passed by the Division Bench of the High Court directing to release the mortgaged property/secured property and to handover the possession as well as the original title deeds to the borrower on payment of a total sum of Rs.65.65 lakhs only is contrary to Sub-section (8) of Section 13 of the SARFAESI Act. 7. Even otherwise on making the payment i.e. Rs.65.65 lakhs against the total dues Rs.1,85,37,218.80/- as on 07.01.2013 the entire liability outstanding against the borrower cannot be said to have been discharged. Even if the mortgaged property would have been sold in a public auction say for an amount of Rs.71 lakhs and the bank has realized Rs.71 lakhs by selling the mortgaged property, in that case also the liability of the borrower to pay the balance amount would still continue. By selling the mortgaged property/secured property it cannot be said that the borrower is discharged from the entire liability outstanding against him. The liability of the borrower with respect to the balance outstanding dues would still be continued. Therefore, the Division Bench of the High Court has erred in directing to release the mortgaged property/secured property and to handover the possession along with the original title deeds to the borrower on payment of a total sum of Rs.65.65 lakhs only. 7.1 At the cost of repetition it is observed that as such the bank had already initiated the proceedings under Section 13 of the SARFAESI Act and even the possession of the mortgaged property was taken over by the bank under Section 14 of the SARFAESI Act and thereafter the mortgaged property was put to sale by a public auction and at that stage the borrower wanted to stall the auction proceedings and restrain the secured creditor/bank from selling the property. In such a situation the bank/secured creditor can be restrained from selling the mortgaged property/secured property where the borrower deposits entire dues that was Rs.1,85,37,218.80/- as on 07.01.2013 with the secured creditor. Therefore, the DRT in its order dated 17.01.2014 which as such was an interim relief order pending the appeal under Section 17 of the SARFAESI Act was not justified in directing to release the mortgaged property and handover the possession along with the original title deeds to the borrower on payment of Rs.48.65 lakhs only which was the base price/ reserve price, which the Division Bench of the High Court has increased to Rs.65.65 lakhs on the ground that the highest bid received was Rs.71 lakhs (which was not materialized as the highest bidder did not come forward). Unless and until the borrower was ready to deposit/pay the entire amount payable together with all costs and expenses with the secured creditor, the borrower cannot be discharged from the entire liability outstanding. Therefore, as such no order could have been passed either by the DRT and/or by the Division Bench of the High Court to discharge the borrower from the entire liability outstanding and to discharge the mortgaged property and handover the possession along with original title deeds to the borrower. As such the learned Single Judge rightly set aside the orders passed by the DRT as well as by the DRAT considering Section 13(8) of the SARFAESI Act. The learned Single Judge was right in setting aside the order passed by the DRT confirmed by the DRAT. The Division Bench of the High Court has erred in interfering with the order passed by the learned Single Judge and has erred in directing to release the mortgaged property/secured property and handover the possession along with the original title deeds to the borrower on payment of a total sum of Rs.65.65 lakhs only. 7.2 However, at the same time the order dated 17.01.2014 passed by the DRT was an interim relief order in SA No.9/2014 and therefore even if the interim relief order is set aside by this Court the appeal/application will have to be decided and disposed of on merits and on whatever grounds which may be available to the borrower. However, at the same time the bank cannot be restrained from selling the mortgaged property by holding the public auction and realise the amount and recover the outstanding dues, unless the borrower deposits/pays the entire amount due and payable along with the costs incurred by the secured creditor as per Section 13(f) of the SARFAESI Act.
### Response:
1
### Explanation:
publication of notice for public auction or inviting quotations or tender from public or private treaty for transfer by way of lease assignment or sale of the secured assets. In the present case though as on 07.01.2013 the dues were Rs. Rs.1,85,37,218.80/- and without the secured property was sold in a public auction the Division Bench of the High Court has directed to release the mortgaged property and handover the possession along with original title deeds to the borrower on the borrower depositing/paying a total sum of Rs.65.65 lakhs only. At this stage, it is required to be noted that Rs.65.65 lakhs was not the amount realized by selling the mortgaged property in a public auction. It was only a highest bid received and before any further auction proceedings were conducted, the DRT passed an interim order directing to handover the possession and handover the original title deeds on payment of Rs.48.65 lakhs which was the base price, which was the subject matter before the DRAT and before the learned Single Judge. Therefore, the borrower did not deposit and was not ready to deposit the entire amount of dues with secured creditor with all costs, charges and expenses incurred by the secured creditor. Therefore, it was open for the secured creditor to sell the mortgaged property which was put as a security and realize the amount by selling it in a public auction. At this stage, it is required to be noted that even as per the Division Bench of the High Court the borrower made an offer to deposit/pay Rs.71 lakhs as a purchaser and not by way of redeeming the mortgaged property. Therefore, the impugned judgment and order passed by the Division Bench of the High Court directing to release the mortgaged property/secured property and to handover the possession as well as the original title deeds to the borrower on payment of a total sum of Rs.65.65 lakhs only is contrary to Sub-section (8) of Section 13 of the SARFAESI Act.7. Even otherwise on making the payment i.e. Rs.65.65 lakhs against the total dues Rs.1,85,37,218.80/- as on 07.01.2013 the entire liability outstanding against the borrower cannot be said to have been discharged. Even if the mortgaged property would have been sold in a public auction say for an amount of Rs.71 lakhs and the bank has realized Rs.71 lakhs by selling the mortgaged property, in that case also the liability of the borrower to pay the balance amount would still continue. By selling the mortgaged property/secured property it cannot be said that the borrower is discharged from the entire liability outstanding against him. The liability of the borrower with respect to the balance outstanding dues would still be continued. Therefore, the Division Bench of the High Court has erred in directing to release the mortgaged property/secured property and to handover the possession along with the original title deeds to the borrower on payment of a total sum of Rs.65.65 lakhs only.7.1 At the cost of repetition it is observed that as such the bank had already initiated the proceedings under Section 13 of the SARFAESI Act and even the possession of the mortgaged property was taken over by the bank under Section 14 of the SARFAESI Act and thereafter the mortgaged property was put to sale by a public auction and at that stage the borrower wanted to stall the auction proceedings and restrain the secured creditor/bank from selling the property. In such a situation the bank/secured creditor can be restrained from selling the mortgaged property/secured property where the borrower deposits entire dues that was Rs.1,85,37,218.80/- as on 07.01.2013 with the secured creditor. Therefore, the DRT in its order dated 17.01.2014 which as such was an interim relief order pending the appeal under Section 17 of the SARFAESI Act was not justified in directing to release the mortgaged property and handover the possession along with the original title deeds to the borrower on payment of Rs.48.65 lakhs only which was the base price/ reserve price, which the Division Bench of the High Court has increased to Rs.65.65 lakhs on the ground that the highest bid received was Rs.71 lakhs (which was not materialized as the highest bidder did not come forward). Unless and until the borrower was ready to deposit/pay the entire amount payable together with all costs and expenses with the secured creditor, the borrower cannot be discharged from the entire liability outstanding. Therefore, as such no order could have been passed either by the DRT and/or by the Division Bench of the High Court to discharge the borrower from the entire liability outstanding and to discharge the mortgaged property and handover the possession along with original title deeds to the borrower. As such the learned Single Judge rightly set aside the orders passed by the DRT as well as by the DRAT considering Section 13(8) of the SARFAESI Act. The learned Single Judge was right in setting aside the order passed by the DRT confirmed by the DRAT. The Division Bench of the High Court has erred in interfering with the order passed by the learned Single Judge and has erred in directing to release the mortgaged property/secured property and handover the possession along with the original title deeds to the borrower on payment of a total sum of Rs.65.65 lakhs only.7.2 However, at the same time the order dated 17.01.2014 passed by the DRT was an interim relief order in SA No.9/2014 and therefore even if the interim relief order is set aside by this Court the appeal/application will have to be decided and disposed of on merits and on whatever grounds which may be available to the borrower. However, at the same time the bank cannot be restrained from selling the mortgaged property by holding the public auction and realise the amount and recover the outstanding dues, unless the borrower deposits/pays the entire amount due and payable along with the costs incurred by the secured creditor as per Section 13(f) of the SARFAESI Act.
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MANJARI TANTY @ LARIA Vs. SPECIAL LAND ACQUISITION OFFICER AND SUB COLLECTOR, ULTRA MEGA POWER PROJECT, SUNDARGARH & ORS | 1. Leave granted. 2. The present appellant is aggrieved by the judgment and order dated 28.06.2019 passed by the Orissa High Court at Cuttack setting aside the findings recorded by the Civil Judge (Senior Division), Sundargarh, Odisha vide order dated 16.02.2016 directing the present appellant to be entitled to 50% of share of the compensation as awarded by the Reference Court under Section 30 of the Land Acquisition Act, 1894 (the Act). 3. The acquisition proceedings in reference to the subject land in question were initiated pursuant to the Notification dated 28.04.2010 published by State Government under Section 4 of the Act and the subject land of one Late Jadumani admeasuring Ac.7.690 decimals under Hal Khata No.35 of mouza in Village Lankahuda, District Sundargarh, Odisha, was acquired. 4. Pursuant to the subject land was acquired, the claim application was preferred by the aggrieved person(s) before the Land Acquisition Officer (LAO) including the present appellant and respondent no.3. The appellant herein claimed 50% of the awarded amount of compensation as one of the legal representative/heir of the deceased land holder of Late Jadumani. The LAO accepted the claim of respondent no.3 on the basis of the Will, disowning the claim of the present appellant on the premise that Kuladhara father of the appellant was pre-deceased on 14.07.1973 before the death of Jadumani. 5. On appeal being preferred at the instance of the present appellant before the Ld.Senior Civil Judge, Sundargarh, Odisha, the finding was reversed and it was observed that the Kuladhara, father of the appellant died on 14.07.1993 and the appellant was entitled for 50% share of the compensation awarded by the Reference Court, but on further appeal being preferred by the respondent no.3, the finding of the Land Acquisition Officer was restored holding the death of Kuladhara, father of the appellant was pre-deceased on 14.07.1973. 6. This Court in its order dated 17.12.2019 observed as under : The only question involved in this petition is regarding the death of Kuladhar. Learned counsel for the petitioner submits that he has died on 14.7.1993 whereas learned counsel for the respondent submits that Kuladhar has expired on 14.07.1973. However, the death certificate issued by the concerned authorities shows that Kuladhars death ws on 10.05.1983. Learned counsel for the petitioner is directed to produce certified copy of the birth and death register before this Court finally within three weeks from today. Status quo, existing as on today, shall be maintained with regard to the compensation. List after three weeks. 7. In sequel thereof, by order dated 31.01.2020, this Court directed the Principal District Judge, Sundargarh in the State of Odisha to conduct an enquiry regarding the date of death of Kuladhara Tanty s/o late Brundaban Tanty, resident of Village/P.O. Lankahuda, P.S. Sadar, District Sundargarh and submit a report to this Court. 8. In compliance of order of this Court, Ld. District & Sessions Judge, Sundargarh conducted inquiry and submitted its report to this Court finally arriving at a conclusion after appreciation of the evidence being filed by the respective parties and also taken into consideration the oral evidence which was produced before him, observed that death of Kuladhara had taken place on 14.07.1993 in Village Raibaga. 9. Mr.Ramakant Mohanty, learned senior counsel for respondent no.3 submits that during the pendency of the proceedings, 14.07.1973 was the date of death of Kuladhara was on record and at one stage an application was filed at the instance of the present appellant seeking amendment treating it to be a typographical error to show the date of death of Kuladhara to be 14.07.1993. The application for amendment was dismissed and revision petition preferred at the instance of the appellant was declared to be infructuous. 10. Learned counsel further submits that once the application for amendment seeking change of date of death of Kuladhara has been rejected, it may not be in the interest of justice in taking the report of the Ld. District & Sessions Judge, Sundargarh who has not appreciated the evidence in the right perspective to record a finding regarding the date of death of Kuladhara. 11. After we have heard learned counsel for the parties and taking into consideration the report of Ld. District & Sessions Judge, Sundargarh which has been furnished by him on 28.09.2020 pursuant to the order of this Court dated 31.01.2020 and arrived at conclusion that death of Kuladhara had taken place on 14.07.1993 in Village Raibaga. We accept the report. 12. In our considered view, the order of the High Court impugned dated 28.06.2019 in the light of what has been aforestated, deserves to be set aside. | 1[ds]11. After we have heard learned counsel for the parties and taking into consideration the report of Ld. District & Sessions Judge, Sundargarh which has been furnished by him on 28.09.2020 pursuant to the order of this Court dated 31.01.2020 and arrived at conclusion that death of Kuladhara had taken place on 14.07.1993 in Village Raibaga. We accept the report.12. In our considered view, the order of the High Court impugned dated 28.06.2019 in the light of what has been aforestated, deserves to be set aside. | 1 | 852 | 98 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
1. Leave granted. 2. The present appellant is aggrieved by the judgment and order dated 28.06.2019 passed by the Orissa High Court at Cuttack setting aside the findings recorded by the Civil Judge (Senior Division), Sundargarh, Odisha vide order dated 16.02.2016 directing the present appellant to be entitled to 50% of share of the compensation as awarded by the Reference Court under Section 30 of the Land Acquisition Act, 1894 (the Act). 3. The acquisition proceedings in reference to the subject land in question were initiated pursuant to the Notification dated 28.04.2010 published by State Government under Section 4 of the Act and the subject land of one Late Jadumani admeasuring Ac.7.690 decimals under Hal Khata No.35 of mouza in Village Lankahuda, District Sundargarh, Odisha, was acquired. 4. Pursuant to the subject land was acquired, the claim application was preferred by the aggrieved person(s) before the Land Acquisition Officer (LAO) including the present appellant and respondent no.3. The appellant herein claimed 50% of the awarded amount of compensation as one of the legal representative/heir of the deceased land holder of Late Jadumani. The LAO accepted the claim of respondent no.3 on the basis of the Will, disowning the claim of the present appellant on the premise that Kuladhara father of the appellant was pre-deceased on 14.07.1973 before the death of Jadumani. 5. On appeal being preferred at the instance of the present appellant before the Ld.Senior Civil Judge, Sundargarh, Odisha, the finding was reversed and it was observed that the Kuladhara, father of the appellant died on 14.07.1993 and the appellant was entitled for 50% share of the compensation awarded by the Reference Court, but on further appeal being preferred by the respondent no.3, the finding of the Land Acquisition Officer was restored holding the death of Kuladhara, father of the appellant was pre-deceased on 14.07.1973. 6. This Court in its order dated 17.12.2019 observed as under : The only question involved in this petition is regarding the death of Kuladhar. Learned counsel for the petitioner submits that he has died on 14.7.1993 whereas learned counsel for the respondent submits that Kuladhar has expired on 14.07.1973. However, the death certificate issued by the concerned authorities shows that Kuladhars death ws on 10.05.1983. Learned counsel for the petitioner is directed to produce certified copy of the birth and death register before this Court finally within three weeks from today. Status quo, existing as on today, shall be maintained with regard to the compensation. List after three weeks. 7. In sequel thereof, by order dated 31.01.2020, this Court directed the Principal District Judge, Sundargarh in the State of Odisha to conduct an enquiry regarding the date of death of Kuladhara Tanty s/o late Brundaban Tanty, resident of Village/P.O. Lankahuda, P.S. Sadar, District Sundargarh and submit a report to this Court. 8. In compliance of order of this Court, Ld. District & Sessions Judge, Sundargarh conducted inquiry and submitted its report to this Court finally arriving at a conclusion after appreciation of the evidence being filed by the respective parties and also taken into consideration the oral evidence which was produced before him, observed that death of Kuladhara had taken place on 14.07.1993 in Village Raibaga. 9. Mr.Ramakant Mohanty, learned senior counsel for respondent no.3 submits that during the pendency of the proceedings, 14.07.1973 was the date of death of Kuladhara was on record and at one stage an application was filed at the instance of the present appellant seeking amendment treating it to be a typographical error to show the date of death of Kuladhara to be 14.07.1993. The application for amendment was dismissed and revision petition preferred at the instance of the appellant was declared to be infructuous. 10. Learned counsel further submits that once the application for amendment seeking change of date of death of Kuladhara has been rejected, it may not be in the interest of justice in taking the report of the Ld. District & Sessions Judge, Sundargarh who has not appreciated the evidence in the right perspective to record a finding regarding the date of death of Kuladhara. 11. After we have heard learned counsel for the parties and taking into consideration the report of Ld. District & Sessions Judge, Sundargarh which has been furnished by him on 28.09.2020 pursuant to the order of this Court dated 31.01.2020 and arrived at conclusion that death of Kuladhara had taken place on 14.07.1993 in Village Raibaga. We accept the report. 12. In our considered view, the order of the High Court impugned dated 28.06.2019 in the light of what has been aforestated, deserves to be set aside.
### Response:
1
### Explanation:
11. After we have heard learned counsel for the parties and taking into consideration the report of Ld. District & Sessions Judge, Sundargarh which has been furnished by him on 28.09.2020 pursuant to the order of this Court dated 31.01.2020 and arrived at conclusion that death of Kuladhara had taken place on 14.07.1993 in Village Raibaga. We accept the report.12. In our considered view, the order of the High Court impugned dated 28.06.2019 in the light of what has been aforestated, deserves to be set aside.
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Addison & Co. Ltd Vs. Collector of Central Excise, Madras | S.P. Bharucha and S.C. Sen, JJ. 1. The appellant Addison & Company Ltd. manufactures cutting tools which fall under Tariff Item 51A. The cutting tools manufactured by Addison & Company were not exigible to duty before 1-3-l974. There is no dispute that they were manufacturing cutting tools even before this date. A Notification was issued by Finance (Revenue) Department of Government of India, No. 198/76-C.E., dated 16-6-1976 by which exemption was granted to the extent of 25% of the excise duty on excess clearance of certain specified excisable goods. The excess clearances had to be calculated with reference to the base clearance to be determined in respect of each manufacturer in the manner prescribed in the Notification. 2. The relevant portion of the Notification is as under : (2) After comparing the clearances of specified goods under sub-paragraph (1), the base period and base clearances, in relation to a factory, shall be determined as under : (a) Where the specified goods were or are cleared from a factory for the first time on or after the 1st day of April 1976, the base period shall be the year 1975-76, and the base clearances shall be nil; (b) where the specified goods were cleared from a factory for the first time on or after the 31st day of April 1973, but not later than the 31st day of March 1976, the base period shall be the three financial years, namely, 1973-74, 1974-75 and 1975-76 and the base clearances shall be the one-third of the aggregate of the clearances of such goods during such base period; (c) where the specified goods were cleared from the factory for the first time earlier than 1st day of April 1973, the base period shall be the year in which the aggregate of the clearances of such goods during any of the financial years 1973-74, 1974-75 and 1975-76 was the highest and the clearance during such base period shall be the base clearances. 3. Initially the excise authority was of the view that the base clearances will be calculated on the basis of Clause (b) of Paragraph (2) of the Notification. The appellant was informed accordingly. But later on the excise authorities changed their view and a show cause notice was issued to the assessee and after hearing him it was decided to calculate the base clearances in terms of Clause (c) of Paragraph (2). 4. Mr. Shanker Ghosh, learned Senior Counsel appearing on behalf of the appellant, has contended that the excise authority has fallen into an error in treating Clause (c) as the appropriate clause for the purpose of determining base clearance of the goods manufactured by the appellants in this case. 5. Clause (b) deals with cases where specified goods were cleared from a factory for the first time on or after 1st day of April, 1973. Clause (c) deals with cases where goods were cleared for the first time earlier than 1st day of April, 1973. The finding of fact is that the goods of the appellant were manufactured and cleared even earlier than 1st day of April, 1973. That being the position the case of the appellant will squarely come within Clause (c) of Paragraph (2). 6. Mr. Ghosh has, however, contended that the question of clearance of goods could only arise if the excise duty became leviable. The goods manufactured by the assessee were not dutiable before 1-3-1974. Therefore, no question of clearance of the goods manufactured by the appellant could arise before that date. 7. We are unable to uphold this contention. In the first place, excise duty becomes leviable on the goods manufactured by the appellant on and from 1st March, 1973. That means, the assessee was producing excisable goods even before 1st April, 1973. That apart, merely because Clauses (b) and (c) speak of clearance of the goods and the base period has to be determined on the basis of aggregate of the clearances of such goods during the financial years 1973-74, 1974-75 and 1975-76, it does not follow that clearances must be of dutiable goods and the base year must be determined with effect from the date when the duty was imposed and not earlier. Section 3 of the Central Excise Act imposes a duty on manufacturers of excisable goods. Rule 9 of the Central Excise Rules provided for calculation of duty and value of the goods at the time of removal of the goods from the factory or a warehouse. The notification deals with clearances of specified goods, not removal of excisable goods. The goods which have been specified in the Notification will qualify for the relief given in the Notification. The goods of the appellant have been specified in the Notification and as such qualified for the exemption. Therefore, clearances in the context of this Notification cannot have any special meaning. It does not signify any special sense nor can it be equated with removal of dutiable goods from a factory under the Central Excise Act. 8. Our attention was also drawn to the various wordings of the Notification dealing with calculation of excess clearance with reference to value of the goods and also on the basis of the accounts maintained under the excise rules. The manner of calculation cannot take away anything from what has been specifically provided in Clauses (b) and (c) of the Notification in very clear terms. The object is to give relief and encouragement to the manufacturers to produce goods in larger quantities than what were produced in the base year. There is no reason to assume that production before the levy of excise duty has to be ignored for this purpose. The base year has to be determined according to the principle laid down in clear and unambiguous words in Clauses (b) and (c) of Paragraph (2) of the Notification. The appellants goods were cleared from his factory even before 1st April, 1973. As such his case clearly fell within Clause (c). | 0[ds]5. Clause (b) deals with cases where specified goods were cleared from a factory for the first time on or after 1st day of April, 1973. Clause (c) deals with cases where goods were cleared for the first time earlier than 1st day of April, 1973. The finding of fact is that the goods of the appellant were manufactured and cleared even earlier than 1st day of April, 1973. That being the position the case of the appellant will squarely come within Clause (c) of Paragraph (2).7. We are unable to uphold this contention. In the first place, excise duty becomes leviable on the goods manufactured by the appellant on and from 1st March, 1973. That means, the assessee was producing excisable goods even before 1st April, 1973. That apart, merely because Clauses (b) and (c) speak of clearance of the goods and the base period has to be determined on the basis of aggregate of the clearances of such goods during the financial years 1973-74, 1974-75 and 1975-76, it does not follow that clearances must be of dutiable goods and the base year must be determined with effect from the date when the duty was imposed and not earlier. Section 3 of the Central Excise Act imposes a duty on manufacturers of excisable goods. Rule 9 of the Central Excise Rules provided for calculation of duty and value of the goods at the time of removal of the goods from the factory or a warehouse. The notification deals with clearances of specified goods, not removal of excisable goods. The goods which have been specified in the Notification will qualify for the relief given in the Notification. The goods of the appellant have been specified in the Notification and as such qualified for the exemption. Therefore, clearances in the context of this Notification cannot have any special meaning. It does not signify any special sense nor can it be equated with removal of dutiable goods from a factory under the Central Excise Act.8. Our attention was also drawn to the various wordings of the Notification dealing with calculation of excess clearance with reference to value of the goods and also on the basis of the accounts maintained under the excise rules. The manner of calculation cannot take away anything from what has been specifically provided in Clauses (b) and (c) of the Notification in very clear terms. The object is to give relief and encouragement to the manufacturers to produce goods in larger quantities than what were produced in the base year. There is no reason to assume that production before the levy of excise duty has to be ignored for this purpose. The base year has to be determined according to the principle laid down in clear and unambiguous words in Clauses (b) and (c) of Paragraph (2) of the Notification. The appellants goods were cleared from his factory even before 1st April, 1973. As such his case clearly fell within Clause (c). | 0 | 1,124 | 561 | ### 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:
S.P. Bharucha and S.C. Sen, JJ. 1. The appellant Addison & Company Ltd. manufactures cutting tools which fall under Tariff Item 51A. The cutting tools manufactured by Addison & Company were not exigible to duty before 1-3-l974. There is no dispute that they were manufacturing cutting tools even before this date. A Notification was issued by Finance (Revenue) Department of Government of India, No. 198/76-C.E., dated 16-6-1976 by which exemption was granted to the extent of 25% of the excise duty on excess clearance of certain specified excisable goods. The excess clearances had to be calculated with reference to the base clearance to be determined in respect of each manufacturer in the manner prescribed in the Notification. 2. The relevant portion of the Notification is as under : (2) After comparing the clearances of specified goods under sub-paragraph (1), the base period and base clearances, in relation to a factory, shall be determined as under : (a) Where the specified goods were or are cleared from a factory for the first time on or after the 1st day of April 1976, the base period shall be the year 1975-76, and the base clearances shall be nil; (b) where the specified goods were cleared from a factory for the first time on or after the 31st day of April 1973, but not later than the 31st day of March 1976, the base period shall be the three financial years, namely, 1973-74, 1974-75 and 1975-76 and the base clearances shall be the one-third of the aggregate of the clearances of such goods during such base period; (c) where the specified goods were cleared from the factory for the first time earlier than 1st day of April 1973, the base period shall be the year in which the aggregate of the clearances of such goods during any of the financial years 1973-74, 1974-75 and 1975-76 was the highest and the clearance during such base period shall be the base clearances. 3. Initially the excise authority was of the view that the base clearances will be calculated on the basis of Clause (b) of Paragraph (2) of the Notification. The appellant was informed accordingly. But later on the excise authorities changed their view and a show cause notice was issued to the assessee and after hearing him it was decided to calculate the base clearances in terms of Clause (c) of Paragraph (2). 4. Mr. Shanker Ghosh, learned Senior Counsel appearing on behalf of the appellant, has contended that the excise authority has fallen into an error in treating Clause (c) as the appropriate clause for the purpose of determining base clearance of the goods manufactured by the appellants in this case. 5. Clause (b) deals with cases where specified goods were cleared from a factory for the first time on or after 1st day of April, 1973. Clause (c) deals with cases where goods were cleared for the first time earlier than 1st day of April, 1973. The finding of fact is that the goods of the appellant were manufactured and cleared even earlier than 1st day of April, 1973. That being the position the case of the appellant will squarely come within Clause (c) of Paragraph (2). 6. Mr. Ghosh has, however, contended that the question of clearance of goods could only arise if the excise duty became leviable. The goods manufactured by the assessee were not dutiable before 1-3-1974. Therefore, no question of clearance of the goods manufactured by the appellant could arise before that date. 7. We are unable to uphold this contention. In the first place, excise duty becomes leviable on the goods manufactured by the appellant on and from 1st March, 1973. That means, the assessee was producing excisable goods even before 1st April, 1973. That apart, merely because Clauses (b) and (c) speak of clearance of the goods and the base period has to be determined on the basis of aggregate of the clearances of such goods during the financial years 1973-74, 1974-75 and 1975-76, it does not follow that clearances must be of dutiable goods and the base year must be determined with effect from the date when the duty was imposed and not earlier. Section 3 of the Central Excise Act imposes a duty on manufacturers of excisable goods. Rule 9 of the Central Excise Rules provided for calculation of duty and value of the goods at the time of removal of the goods from the factory or a warehouse. The notification deals with clearances of specified goods, not removal of excisable goods. The goods which have been specified in the Notification will qualify for the relief given in the Notification. The goods of the appellant have been specified in the Notification and as such qualified for the exemption. Therefore, clearances in the context of this Notification cannot have any special meaning. It does not signify any special sense nor can it be equated with removal of dutiable goods from a factory under the Central Excise Act. 8. Our attention was also drawn to the various wordings of the Notification dealing with calculation of excess clearance with reference to value of the goods and also on the basis of the accounts maintained under the excise rules. The manner of calculation cannot take away anything from what has been specifically provided in Clauses (b) and (c) of the Notification in very clear terms. The object is to give relief and encouragement to the manufacturers to produce goods in larger quantities than what were produced in the base year. There is no reason to assume that production before the levy of excise duty has to be ignored for this purpose. The base year has to be determined according to the principle laid down in clear and unambiguous words in Clauses (b) and (c) of Paragraph (2) of the Notification. The appellants goods were cleared from his factory even before 1st April, 1973. As such his case clearly fell within Clause (c).
### Response:
0
### Explanation:
5. Clause (b) deals with cases where specified goods were cleared from a factory for the first time on or after 1st day of April, 1973. Clause (c) deals with cases where goods were cleared for the first time earlier than 1st day of April, 1973. The finding of fact is that the goods of the appellant were manufactured and cleared even earlier than 1st day of April, 1973. That being the position the case of the appellant will squarely come within Clause (c) of Paragraph (2).7. We are unable to uphold this contention. In the first place, excise duty becomes leviable on the goods manufactured by the appellant on and from 1st March, 1973. That means, the assessee was producing excisable goods even before 1st April, 1973. That apart, merely because Clauses (b) and (c) speak of clearance of the goods and the base period has to be determined on the basis of aggregate of the clearances of such goods during the financial years 1973-74, 1974-75 and 1975-76, it does not follow that clearances must be of dutiable goods and the base year must be determined with effect from the date when the duty was imposed and not earlier. Section 3 of the Central Excise Act imposes a duty on manufacturers of excisable goods. Rule 9 of the Central Excise Rules provided for calculation of duty and value of the goods at the time of removal of the goods from the factory or a warehouse. The notification deals with clearances of specified goods, not removal of excisable goods. The goods which have been specified in the Notification will qualify for the relief given in the Notification. The goods of the appellant have been specified in the Notification and as such qualified for the exemption. Therefore, clearances in the context of this Notification cannot have any special meaning. It does not signify any special sense nor can it be equated with removal of dutiable goods from a factory under the Central Excise Act.8. Our attention was also drawn to the various wordings of the Notification dealing with calculation of excess clearance with reference to value of the goods and also on the basis of the accounts maintained under the excise rules. The manner of calculation cannot take away anything from what has been specifically provided in Clauses (b) and (c) of the Notification in very clear terms. The object is to give relief and encouragement to the manufacturers to produce goods in larger quantities than what were produced in the base year. There is no reason to assume that production before the levy of excise duty has to be ignored for this purpose. The base year has to be determined according to the principle laid down in clear and unambiguous words in Clauses (b) and (c) of Paragraph (2) of the Notification. The appellants goods were cleared from his factory even before 1st April, 1973. As such his case clearly fell within Clause (c).
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Rajesh Awasthi Vs. Nand Lal Jaiswal | of mind and overlooking that statutory provision, appointed the appellant. 16. A writ of quo warranto will lie when the appointment is made contrary to the statutory provisions. This Court in Mor Modern Coop. Transport Coop. Transport Society Ltd. v. Govt. of Haryana (2002) 6 SCC 269 held that a writ of quo warranto can be issued when appointment is contrary to the statutory provisions. In B. Srinivasa Reddy (supra), this Court has reiterated the legal position that the jurisdiction of the High Court to issue a writ of quo warranto is limited to one which can only be issued if the appointment is contrary to the statutory rules. The said position has been reiterated by this Court in Hari Bans Lal (supra) wherein this Court has held that for the issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules. 17. We are of the view that the principle laid down by this Court in the above-mentioned judgment squarely applies to the facts of this case. The appointment of the first respondent, in our considered view, is in clear violation of sub-section (5) of Section 85 of the Act. Consequently, he has no authority to hold the post of Chairperson of the U.P. State Electricity Regulatory Commission. 18. We express no opinion with regard to the contentions raised by the first respondent that the appellant had links with J.P. Power Ventures Ltd. According to the first respondent, the appellant had approved the higher tariff right to favour M/s J.P. Power Ventures Ltd., vide his order dated 27.8.2010. We have already found that the question as to whether, being Vice President of the J.P. Power, the appellant had any financial or other interest which would prejudicially affect his function as chairperson was an issue which the Selection Committee ought to have considered. We may point out that when the Selection Committee was constituted, 1999 Rules were in force and the present 2008 Rules came into force only on 1.1.2009. By virtue of Section 85 of the Act, the then existing Rules 1999 were also safeguarded. Section 3 of the 1999 Rules deals with the selection process for the post of Chairperson, which is almost pari-materia to the 2008 Rules. Sub-section (3) of Rule 3 is of some relevance, hence we extract the same: “3 (3) The convener shall sand requisition for the selection of any member for the aforesaid posts to different departments of State Governments and Central Govt., Public and Private Undertakings, Industrial Enterprises and to Organisation engaged in generation, distribution and supply of electricity, financial institutions, educational institutions and to the High Court and shall also invite applications directly from eligible persons by notifying the vacancy in the Government Gazette. The eligible persons may send their applications directly or through an officer or authority under whom he is for the time being working.” 19. The above-mentioned statutory requirements were also not followed in the instant case, over and above, the non-compliance of sub-section (5) of Section 85 of the Act. 20. We fully agree with the learned senior counsel for the appellant that suitability of a candidate for appointment does not fall within the realm of writ of quo warranto and there cannot be any quarrel with that legal proposition. Learned senior counsel also submitted that, assuming that the Selection Committee had not discharged its functions under sub-section (5) of Section 85 of the Act, it was only an omission which could be cured by giving a direction to the Selection Committee to comply with the requirement of sub-section (5) of Section 85 of the Act. Learned senior counsel submitted that since it is a curable irregularity, a writ of quo warranto be not issued since issuing of writ of quo warranto is within the discretion of the Court. Learned senior counsel made reference to the judgment of Court in R. v. Speyer (1916) 1 K.B. 595. 21. We are of the view that non-compliance of sub-section (5) of Section 85 of the Act is not a procedural violation, as it affects the very substratum of the appointment, being a mandatory requirement to be complied with, by the Selection Committee before recommending a person for the post of Chairperson. We are of the view that non-compliance of sub-section (5) of Section 85 of the Act will vitiate the entire selection process since it is intended to be followed before making the recommendation to the State Government. Non-compliance of mandatory requirements results in nullification of the process of selection unless it is shown that performance of that requirement was impossible or it could be statutorily waived. The expression “before recommending any person” clearly indicates that it is a mandatory requirement to be followed by the Selection Committee before recommending the name of any person for the post of Chairperson. The expression “before” clearly indicates the intention of the Legislature. The meaning of the expression “before” came for consideration before this Court in State Bank of Travancore v. Mohammad (1981) 4 SCC 82 where the words “any debt due at and before the commencement of this Act to any banking company” as occurring in section 4(1) of the Kerala Agriculturist Debt Relief Act, 1970, were construed by the Supreme Court to mean “any debt due at and before the commencement of this Act”. We, therefore, find it difficult to accept the contention of learned senior counsel that this, being a procedural provision and non-compliance of sub-section (5) of Section 85 of the Act, is a defect curable by sending the recommendation back to the Selection Committee for compliance of sub-section (5) of Section 85 of the Act.22. We are, therefore, in agreement with the High Court that the appointment of the appellant was in clear violation of sub-section (5) of Section 85 of the Act and, consequently, he has no authority to hold the post of the Chairperson of the Commission and the High Court has rightly held so. | 0[ds]21. We are of the view that non-compliance of sub-section (5) of Section 85 of the Act is not a procedural violation, as it affects the very substratum of the appointment, being a mandatory requirement to be complied with, by the Selection Committee before recommending a person for the post of Chairperson. We are of the view that non-compliance of sub-section (5) of Section 85 of the Act will vitiate the entire selection process since it is intended to be followed before making the recommendation to the State Government. Non-compliance of mandatory requirements results in nullification of the process of selection unless it is shown that performance of that requirement was impossible or it could be statutorily waived. The expressionclearly indicates that it is a mandatory requirement to be followed by the Selection Committee before recommending the name of any person for the post of Chairperson. The expressionclearly indicates the intention of the Legislature. The meaning of the expressioncame for consideration before this Court in State Bank of Travancore v. Mohammad (1981) 4 SCC 82 where the wordsdebt due at and before the commencement of this Act to any bankingas occurring in section 4(1) of the Kerala Agriculturist Debt Relief Act, 1970, were construed by the Supreme Court to meandebt due at and before the commencement of thisWe, therefore, find it difficult to accept the contention of learned senior counsel that this, being a procedural provision and non-compliance of sub-section (5) of Section 85 of the Act, is a defect curable by sending the recommendation back to the Selection Committee for compliance of sub-section (5) of Section 85 of the Act.22. We are, therefore, in agreement with the High Court that the appointment of the appellant was in clear violation of sub-section (5) of Section 85 of the Act and, consequently, he has no authority to hold the post of the Chairperson of the Commission and the High Court has rightly held so. | 0 | 4,343 | 363 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
of mind and overlooking that statutory provision, appointed the appellant. 16. A writ of quo warranto will lie when the appointment is made contrary to the statutory provisions. This Court in Mor Modern Coop. Transport Coop. Transport Society Ltd. v. Govt. of Haryana (2002) 6 SCC 269 held that a writ of quo warranto can be issued when appointment is contrary to the statutory provisions. In B. Srinivasa Reddy (supra), this Court has reiterated the legal position that the jurisdiction of the High Court to issue a writ of quo warranto is limited to one which can only be issued if the appointment is contrary to the statutory rules. The said position has been reiterated by this Court in Hari Bans Lal (supra) wherein this Court has held that for the issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules. 17. We are of the view that the principle laid down by this Court in the above-mentioned judgment squarely applies to the facts of this case. The appointment of the first respondent, in our considered view, is in clear violation of sub-section (5) of Section 85 of the Act. Consequently, he has no authority to hold the post of Chairperson of the U.P. State Electricity Regulatory Commission. 18. We express no opinion with regard to the contentions raised by the first respondent that the appellant had links with J.P. Power Ventures Ltd. According to the first respondent, the appellant had approved the higher tariff right to favour M/s J.P. Power Ventures Ltd., vide his order dated 27.8.2010. We have already found that the question as to whether, being Vice President of the J.P. Power, the appellant had any financial or other interest which would prejudicially affect his function as chairperson was an issue which the Selection Committee ought to have considered. We may point out that when the Selection Committee was constituted, 1999 Rules were in force and the present 2008 Rules came into force only on 1.1.2009. By virtue of Section 85 of the Act, the then existing Rules 1999 were also safeguarded. Section 3 of the 1999 Rules deals with the selection process for the post of Chairperson, which is almost pari-materia to the 2008 Rules. Sub-section (3) of Rule 3 is of some relevance, hence we extract the same: “3 (3) The convener shall sand requisition for the selection of any member for the aforesaid posts to different departments of State Governments and Central Govt., Public and Private Undertakings, Industrial Enterprises and to Organisation engaged in generation, distribution and supply of electricity, financial institutions, educational institutions and to the High Court and shall also invite applications directly from eligible persons by notifying the vacancy in the Government Gazette. The eligible persons may send their applications directly or through an officer or authority under whom he is for the time being working.” 19. The above-mentioned statutory requirements were also not followed in the instant case, over and above, the non-compliance of sub-section (5) of Section 85 of the Act. 20. We fully agree with the learned senior counsel for the appellant that suitability of a candidate for appointment does not fall within the realm of writ of quo warranto and there cannot be any quarrel with that legal proposition. Learned senior counsel also submitted that, assuming that the Selection Committee had not discharged its functions under sub-section (5) of Section 85 of the Act, it was only an omission which could be cured by giving a direction to the Selection Committee to comply with the requirement of sub-section (5) of Section 85 of the Act. Learned senior counsel submitted that since it is a curable irregularity, a writ of quo warranto be not issued since issuing of writ of quo warranto is within the discretion of the Court. Learned senior counsel made reference to the judgment of Court in R. v. Speyer (1916) 1 K.B. 595. 21. We are of the view that non-compliance of sub-section (5) of Section 85 of the Act is not a procedural violation, as it affects the very substratum of the appointment, being a mandatory requirement to be complied with, by the Selection Committee before recommending a person for the post of Chairperson. We are of the view that non-compliance of sub-section (5) of Section 85 of the Act will vitiate the entire selection process since it is intended to be followed before making the recommendation to the State Government. Non-compliance of mandatory requirements results in nullification of the process of selection unless it is shown that performance of that requirement was impossible or it could be statutorily waived. The expression “before recommending any person” clearly indicates that it is a mandatory requirement to be followed by the Selection Committee before recommending the name of any person for the post of Chairperson. The expression “before” clearly indicates the intention of the Legislature. The meaning of the expression “before” came for consideration before this Court in State Bank of Travancore v. Mohammad (1981) 4 SCC 82 where the words “any debt due at and before the commencement of this Act to any banking company” as occurring in section 4(1) of the Kerala Agriculturist Debt Relief Act, 1970, were construed by the Supreme Court to mean “any debt due at and before the commencement of this Act”. We, therefore, find it difficult to accept the contention of learned senior counsel that this, being a procedural provision and non-compliance of sub-section (5) of Section 85 of the Act, is a defect curable by sending the recommendation back to the Selection Committee for compliance of sub-section (5) of Section 85 of the Act.22. We are, therefore, in agreement with the High Court that the appointment of the appellant was in clear violation of sub-section (5) of Section 85 of the Act and, consequently, he has no authority to hold the post of the Chairperson of the Commission and the High Court has rightly held so.
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21. We are of the view that non-compliance of sub-section (5) of Section 85 of the Act is not a procedural violation, as it affects the very substratum of the appointment, being a mandatory requirement to be complied with, by the Selection Committee before recommending a person for the post of Chairperson. We are of the view that non-compliance of sub-section (5) of Section 85 of the Act will vitiate the entire selection process since it is intended to be followed before making the recommendation to the State Government. Non-compliance of mandatory requirements results in nullification of the process of selection unless it is shown that performance of that requirement was impossible or it could be statutorily waived. The expressionclearly indicates that it is a mandatory requirement to be followed by the Selection Committee before recommending the name of any person for the post of Chairperson. The expressionclearly indicates the intention of the Legislature. The meaning of the expressioncame for consideration before this Court in State Bank of Travancore v. Mohammad (1981) 4 SCC 82 where the wordsdebt due at and before the commencement of this Act to any bankingas occurring in section 4(1) of the Kerala Agriculturist Debt Relief Act, 1970, were construed by the Supreme Court to meandebt due at and before the commencement of thisWe, therefore, find it difficult to accept the contention of learned senior counsel that this, being a procedural provision and non-compliance of sub-section (5) of Section 85 of the Act, is a defect curable by sending the recommendation back to the Selection Committee for compliance of sub-section (5) of Section 85 of the Act.22. We are, therefore, in agreement with the High Court that the appointment of the appellant was in clear violation of sub-section (5) of Section 85 of the Act and, consequently, he has no authority to hold the post of the Chairperson of the Commission and the High Court has rightly held so.
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Oil & Natural Gas Commission & Another Vs. Association of Natural Gas Consuming Industries of Gujarat & Others | for fixation of price. (vi)The High Court in its judgment has observed : "if the O. N. G. C. were acting fairly and reasonably, there was nothing to prevent them from placing all their cards on the table of the Court. They did not put the price structure that possibly be worked out on the lines similar or akin to those suggested by Dr. V. K. R. V. Rao in his award. Nor did they put forward any other reasonable criteria for price fixation. All throughout they harped on the thermal equivalence and furnace oil equivalence and the prices in U. S. A. and the prices of crude, but did not allow the Court to have the bare glimpse of what could possibly be the well-head price of gas, by making allowances for amortisation and all other conceivable factors, having their sway in the ultimate price fixation. This also is indicative of the unreasonableness on their part and we would say that Mr. Singhvi was justified in complaining that the return filed by the O. N. G. C. in this group of petitions was far from being satisfactory and, therefore, was liable to be brandished as no real return at all. " We think this criticism is not justified. The stand of the ONGC was that it had fixed the prices on the thermal equivalence basis and this has not been controverted or found against. It was the respondents case that the cost plus price would work out much cheaper and the onus was on them to prove it. We fail to see how the blame for not allowing the Court to have a glimpse of what could possibly be the well-head price of gas can be put at the doors of the ONGC. However, this aspect is irrelevant as the case throughout has proceeded on the assumption that the cost plus basis would yield lower figures and the question debated was whether the ONGC could discard this and adopt the thermal equivalence basis. (vii) Turning now to para 36 of the judgment of the High Court, we may observe that these directions do not survive in view of the conclusion we have reached that the prices demanded by ONGC are based on proper and relevant criteria. However, we may observe that directions (i) and (ii) in this paragraph virtually throw open the entire issue for fresh discussion. It may have been helpful if such a direction had been given before the hearing of the writ petitions but the exercises would now be futile. Having reached the conclusion that the cost plus was the only proper basis of fixation of price, the High Court should perhaps have directed the ONGC to charge prices on that basis and given a reasonable time to work out the said price and implement the direction. Instead, the High Court appears to have, by its directions in para 36, left the matter at large for it asks the ONGC to get the price fixed "according to the reasonable and rational norms". We do not also see any justification for providing that the price fixation should be done in consultation with, or after giving an opportunity to the respondents. It is for the ONGC to fix the prices and there can be no requirement of a prior consultation with the present respondents or with prospective customers. In such cases of price fixation, as in the case of price fixations by Government the only remedy of aggrieved consumers can perhaps be to have some sort of post-decisional reconsideration by the ONGC after hearing the view points of those affected. But this question does not arise now in the view we have taken of the ONGCs obligations in this regard. We should also like to add that, now that the prices have been fixed, by the Government since 30-1-1987 and gas has already been supplied to the respondents till then on the basis of interim prices, the implementation of the directions contained in this paragraph would be a prolonged and unmeaningful exercise and it would have been much better to fix some ad hoc price, for this period, after hearing both parties. In fact, Sri B. Sen who appeared for the ONGC very fairly stated before us that, so far as this period was concerned, the ONGC was prepared to leave it to this Court to fix the price of supply at any figure that the Court might consider reasonable. We also suggested to the respondents, keeping the price fixed by the order dated 30-3-1987 in mind, a figure which we thought was reasonable but the respondents were not agreeable to the course suggested. They put forward certain alternative proposals which were not acceptable to the ONGC. In these circumstances, we have been constrained to hear the appeals on merits. (viii) On behalf of the ONGC, it has been pointed out that a sum of Rs. 14. 35 crores is outstanding for the period from December, 198 2/08/1989 from eighteen concerns, even on the basis of the interim prices at which the ONGC has been supplying them gas under the orders of this Court, primarily due to short falls in the guaranteed off-take and that four concerns, who have stopped taking supply of gas, are in arrears to the tune of about Rs. 12 lakhs. We need -hardly say that the ONGC will beat liberty to take immediate steps to recover the charges due from the respondents in the light of this judgment. (ix) We wish to add that we are not called upon to, and do not, express any opinion regarding the notification dated 30-1-87 of the Government issued subsequently fixing the price at Rs. 1400 plus. We do not know the circumstances or the statutory authority or the basis on which the said price -fixation was made and that is totally outside the purview of these appeals. ( 41 ) THIS concludes a discussion of all the points urged before us. For the reasons detailed above, | 1[ds]( 22 ) WE do not think that ONGC satisfies the primary conditions enunciated above for being a public utility undertaking as it has not so far held itself out or undertaken-or been obliged by any law to provide gas supply to the public in general or to any particular cross-section of the public. The proviso to Sec. 14 (l) (e) of the Act which lays down that the setting up of industries to be run with the aid of gas was not to be undertaken by the ONGC without the Central Governments approval also gives an indication that the supply of gas to various industries on a general basis was not in the immediate contemplation of the Act but was envisaged as a future expansion to be initiated with Central Governments approval. Perhaps a stage in the developmental activities of the ONGC will soon come when such an obligation can be inferred but, at present, the ONGC supplies gas only to certain selected contractees. It does not supply gas to the public either in the sense that any individual member of the public or any identifiable cross-section of the public is entitled to demand and receive such supply due to various limitations we shall now touch upon( 23 ) THE main activity of the ONGC is that of exploration and prospecting for petroleum and petroleum products. So far as gas, which is a bye product, is concerned the ONGC has not so far been able voluntarily or constrained statutorily to harness and utilise its production for consumption by the public. Even as per the information placed on record by the respondents about 3000 million cubic metres of gas were burnt in 1985-86 due to the inability of the ONGC to harness it for industrial or domestic use. Such large scale utilisation will involve capital outlay to a considerable extent particularly for the laying of pipe lines to convey the gas to sites of its user. The quantity of gas which is put to such use at, present is an insignificant part of the gas that is being produced and so far the Government does not appear to have called ,upon the ONGC to draw up or submit to the Government under S. 23 of the Act any programme of sale of natural gas to the public generally or even to some categories of public consumers. There is. no doubt that the expansion of the oil sector in recent years, including the recent construction of the HBJ pipeline, will eventually require the ONGC to set up and devise a rational and equitable scheme of distribution and supply of gas to various types of consumers situate over various parts of India. But, as yet, the ONGC has not embarked on any such scheme. It has been supplying gas to certain consumers on the basis of individual contracts and it is in regard to these consumers alone that the question of price has been raised before us( 24 ) WE do not, however, think that it is at all necessary for us to delve further into the above concept or express any final opinion as to whether the ONGC is a public utility or not because the claim of the respondents is for a continuance of the present system followed by the ONGC of supplying gas to select customers on the basis of contracts- entered into with them. They only want the price to be regulated by the court; they do not challenge, for obvious reasons, the system of distribution thus far adopted by the ONGC. If the argument that the ONGC is a public utility is accepted, then the first consequence to follow will be that gas should be made available by it to all persons who need it for use. It cannot be supplied by the ONGC to only a few public sector undertakings like the GSEB and GSFC or only to a few industries like those of the respondents or only to a few municipalities like the Vadodara Municipality for domestic supply; at its sweet will and pleasure. It would then be opea to all undertakings industries and domestic consumers in Bombay, Gujarat and perhaps elsewhere in the country to demand that steps should be taken for the supply of gas to them also. We are unable to agree with the observation of the High Court that, even if the ONGC is treated as a public utility, the respondents, merely because they had entered into temporary contracts for supply of gas with the ONGC, could still insist on continued supply to themselves on "the first come, first served" basis, to the exclusion of later arrivals on the scene. If, as suggested by the respondents, the ONGC is to be treated as a public utility and the price of gas is bound to be on cost plus basis, it may be that quite a few other industries would like to avail themselves of such supply. They have perhaps kept out so far only because the supply price based on alternative fuel price is not acceptable to them. They are keeping out only because they are under the impression that the ONGC is entitled to supply gas to persons with whom it has entered into commercial contracts and on the terms of supply envisaged in those contracts. The treatment of the ONGC as a public utility undertaking for the supply of gas will raise innumerable basic questions totally inconsistent with the present system of selective supply which the respondents want to be continued. It will transpose the area of controversy to a totally different and wider plane. We cannot say that the ONGC is a public utility undertaking and yet direct that it should supply gas to the respondents and a few other industries with which it has entered into contracts. The court would then be constrained to hold that the present system of supply is inconsistent with public law and the constitutional requirements of a public utility undertaking and direct the ONGC to completely overhaul its system of public distribution on sound lines qua types of consumers to be catered to, areas of supply to be covered, price for supply and all other matters. That is not the relief sought by the respondents. All that they want is a declaration that they are entitled to the supply of gas at a reasonable price. It is sufficient, for disposing of this claim, to deal with this aspect of the matter and the larger aspect of ONGC being a public utility undertaking should be left out of account. We, therefore, do not express any final opinion on the issue except to say, prima facie, that it cannot be placed on par with a public utility undertakingWe do not think that any of these observations is in conflict with what we have said. Pure profit motive, unjustifiable according to us even in the case of a private trading concern, can never be the sole guiding factor in the case of a public enterprise. If profit is made not for profits sake but for the purpose of fulfilling, better and more extensively, the obligation of the services expected of it, it cannot be said that the public enterprise acted beyond its authority. The observations in the first case which were referred to us merely emphasised the fact that the Electricity Board is not an ordinary trading corporation and that as a public, utility undertaking its emphasis should be on service and not profit. In the second case, for example, the Court said that it is not expected to make any profit and proceeded to explain why it is not expected to make a profit by. saying that it is expected to extend the supply of electricity to unserved areas without reference to considerations of loss. It is of interest that in the second case, dealing with the question whether interest cannot be taken into account in working out profits, the Court observed, :the facile assumption by the Tribunal that the interest should not be taken into account in working out the profits is not borne out by the provisions of the statute. ( 37 ) WE are not called upon here, in the view we take, to decide whether the cost plus basis or the thermal equivalence basis is more appropriate. All that we wish to say is that, having regard to the basis on which the claims of the respondents have proceeded thus far, our task is a very limited one. We cannot say, for reasons set out below, that the ONGC has acted arbitrarily in fixing the prices on the thermal equivalence basis; the fact that it has not done it on cost plus basis does not vitiate the price fixation. The only question we have to address ourselves to is as to whether the ONGC has fixed a price based on relevant materials and on some known principle. At the outset, one must notice that the price is not directly and specifically related to or based on any unreasonable margin of profit. There is nothing to indicate that the ONGC was prompted, in fixing its prices, on the one and only consideration of deriving maximum profits for itself. On the other hand, it appears to have been guided by the needs of the situation and the nature of the distribution system that is in operation. As we said earlier, and manufacture, distribution and consumption of gas has yet not attained the status of an essential commodity till recently. It is still at a stage where the goods are being distributed under private contracts. Whether this is any longer justified and whether there should riot be a greater amount of control over the modes of, as. well as price for such, distribution is a larger question with which we are not now concerned. At present, we are in the penumbral region where the commodity is free to be distributed at the manufacturers choice, but yet where such manufacturer being a State instrumentality, has to conform to Articles 14 and 19 of the Constitution. | 1 | 20,480 | 1,811 | ### 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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for fixation of price. (vi)The High Court in its judgment has observed : "if the O. N. G. C. were acting fairly and reasonably, there was nothing to prevent them from placing all their cards on the table of the Court. They did not put the price structure that possibly be worked out on the lines similar or akin to those suggested by Dr. V. K. R. V. Rao in his award. Nor did they put forward any other reasonable criteria for price fixation. All throughout they harped on the thermal equivalence and furnace oil equivalence and the prices in U. S. A. and the prices of crude, but did not allow the Court to have the bare glimpse of what could possibly be the well-head price of gas, by making allowances for amortisation and all other conceivable factors, having their sway in the ultimate price fixation. This also is indicative of the unreasonableness on their part and we would say that Mr. Singhvi was justified in complaining that the return filed by the O. N. G. C. in this group of petitions was far from being satisfactory and, therefore, was liable to be brandished as no real return at all. " We think this criticism is not justified. The stand of the ONGC was that it had fixed the prices on the thermal equivalence basis and this has not been controverted or found against. It was the respondents case that the cost plus price would work out much cheaper and the onus was on them to prove it. We fail to see how the blame for not allowing the Court to have a glimpse of what could possibly be the well-head price of gas can be put at the doors of the ONGC. However, this aspect is irrelevant as the case throughout has proceeded on the assumption that the cost plus basis would yield lower figures and the question debated was whether the ONGC could discard this and adopt the thermal equivalence basis. (vii) Turning now to para 36 of the judgment of the High Court, we may observe that these directions do not survive in view of the conclusion we have reached that the prices demanded by ONGC are based on proper and relevant criteria. However, we may observe that directions (i) and (ii) in this paragraph virtually throw open the entire issue for fresh discussion. It may have been helpful if such a direction had been given before the hearing of the writ petitions but the exercises would now be futile. Having reached the conclusion that the cost plus was the only proper basis of fixation of price, the High Court should perhaps have directed the ONGC to charge prices on that basis and given a reasonable time to work out the said price and implement the direction. Instead, the High Court appears to have, by its directions in para 36, left the matter at large for it asks the ONGC to get the price fixed "according to the reasonable and rational norms". We do not also see any justification for providing that the price fixation should be done in consultation with, or after giving an opportunity to the respondents. It is for the ONGC to fix the prices and there can be no requirement of a prior consultation with the present respondents or with prospective customers. In such cases of price fixation, as in the case of price fixations by Government the only remedy of aggrieved consumers can perhaps be to have some sort of post-decisional reconsideration by the ONGC after hearing the view points of those affected. But this question does not arise now in the view we have taken of the ONGCs obligations in this regard. We should also like to add that, now that the prices have been fixed, by the Government since 30-1-1987 and gas has already been supplied to the respondents till then on the basis of interim prices, the implementation of the directions contained in this paragraph would be a prolonged and unmeaningful exercise and it would have been much better to fix some ad hoc price, for this period, after hearing both parties. In fact, Sri B. Sen who appeared for the ONGC very fairly stated before us that, so far as this period was concerned, the ONGC was prepared to leave it to this Court to fix the price of supply at any figure that the Court might consider reasonable. We also suggested to the respondents, keeping the price fixed by the order dated 30-3-1987 in mind, a figure which we thought was reasonable but the respondents were not agreeable to the course suggested. They put forward certain alternative proposals which were not acceptable to the ONGC. In these circumstances, we have been constrained to hear the appeals on merits. (viii) On behalf of the ONGC, it has been pointed out that a sum of Rs. 14. 35 crores is outstanding for the period from December, 198 2/08/1989 from eighteen concerns, even on the basis of the interim prices at which the ONGC has been supplying them gas under the orders of this Court, primarily due to short falls in the guaranteed off-take and that four concerns, who have stopped taking supply of gas, are in arrears to the tune of about Rs. 12 lakhs. We need -hardly say that the ONGC will beat liberty to take immediate steps to recover the charges due from the respondents in the light of this judgment. (ix) We wish to add that we are not called upon to, and do not, express any opinion regarding the notification dated 30-1-87 of the Government issued subsequently fixing the price at Rs. 1400 plus. We do not know the circumstances or the statutory authority or the basis on which the said price -fixation was made and that is totally outside the purview of these appeals. ( 41 ) THIS concludes a discussion of all the points urged before us. For the reasons detailed above,
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then be opea to all undertakings industries and domestic consumers in Bombay, Gujarat and perhaps elsewhere in the country to demand that steps should be taken for the supply of gas to them also. We are unable to agree with the observation of the High Court that, even if the ONGC is treated as a public utility, the respondents, merely because they had entered into temporary contracts for supply of gas with the ONGC, could still insist on continued supply to themselves on "the first come, first served" basis, to the exclusion of later arrivals on the scene. If, as suggested by the respondents, the ONGC is to be treated as a public utility and the price of gas is bound to be on cost plus basis, it may be that quite a few other industries would like to avail themselves of such supply. They have perhaps kept out so far only because the supply price based on alternative fuel price is not acceptable to them. They are keeping out only because they are under the impression that the ONGC is entitled to supply gas to persons with whom it has entered into commercial contracts and on the terms of supply envisaged in those contracts. The treatment of the ONGC as a public utility undertaking for the supply of gas will raise innumerable basic questions totally inconsistent with the present system of selective supply which the respondents want to be continued. It will transpose the area of controversy to a totally different and wider plane. We cannot say that the ONGC is a public utility undertaking and yet direct that it should supply gas to the respondents and a few other industries with which it has entered into contracts. The court would then be constrained to hold that the present system of supply is inconsistent with public law and the constitutional requirements of a public utility undertaking and direct the ONGC to completely overhaul its system of public distribution on sound lines qua types of consumers to be catered to, areas of supply to be covered, price for supply and all other matters. That is not the relief sought by the respondents. All that they want is a declaration that they are entitled to the supply of gas at a reasonable price. It is sufficient, for disposing of this claim, to deal with this aspect of the matter and the larger aspect of ONGC being a public utility undertaking should be left out of account. We, therefore, do not express any final opinion on the issue except to say, prima facie, that it cannot be placed on par with a public utility undertakingWe do not think that any of these observations is in conflict with what we have said. Pure profit motive, unjustifiable according to us even in the case of a private trading concern, can never be the sole guiding factor in the case of a public enterprise. If profit is made not for profits sake but for the purpose of fulfilling, better and more extensively, the obligation of the services expected of it, it cannot be said that the public enterprise acted beyond its authority. The observations in the first case which were referred to us merely emphasised the fact that the Electricity Board is not an ordinary trading corporation and that as a public, utility undertaking its emphasis should be on service and not profit. In the second case, for example, the Court said that it is not expected to make any profit and proceeded to explain why it is not expected to make a profit by. saying that it is expected to extend the supply of electricity to unserved areas without reference to considerations of loss. It is of interest that in the second case, dealing with the question whether interest cannot be taken into account in working out profits, the Court observed, :the facile assumption by the Tribunal that the interest should not be taken into account in working out the profits is not borne out by the provisions of the statute. ( 37 ) WE are not called upon here, in the view we take, to decide whether the cost plus basis or the thermal equivalence basis is more appropriate. All that we wish to say is that, having regard to the basis on which the claims of the respondents have proceeded thus far, our task is a very limited one. We cannot say, for reasons set out below, that the ONGC has acted arbitrarily in fixing the prices on the thermal equivalence basis; the fact that it has not done it on cost plus basis does not vitiate the price fixation. The only question we have to address ourselves to is as to whether the ONGC has fixed a price based on relevant materials and on some known principle. At the outset, one must notice that the price is not directly and specifically related to or based on any unreasonable margin of profit. There is nothing to indicate that the ONGC was prompted, in fixing its prices, on the one and only consideration of deriving maximum profits for itself. On the other hand, it appears to have been guided by the needs of the situation and the nature of the distribution system that is in operation. As we said earlier, and manufacture, distribution and consumption of gas has yet not attained the status of an essential commodity till recently. It is still at a stage where the goods are being distributed under private contracts. Whether this is any longer justified and whether there should riot be a greater amount of control over the modes of, as. well as price for such, distribution is a larger question with which we are not now concerned. At present, we are in the penumbral region where the commodity is free to be distributed at the manufacturers choice, but yet where such manufacturer being a State instrumentality, has to conform to Articles 14 and 19 of the Constitution.
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Industrial Investment Bank Of India Ltd Vs. Bishwanath Jhunjhunwala | his remedies against the surety. In the present case the creditor is a banking company. A guarantee is a collateral security usually taken by a banker. The security will become useless if his rights against the surety can be so easily cut down. 20. In State Bank of India v. M/s. Indexport Registered (supra), this Court held that the decree holder bank can execute the decree against the guarantor without proceeding against the principal borrower. Guarantors liability is co- extensive with that of the principal debtor. In that case, this court further observed that, the execution of the money decree is not made dependent on first applying for execution of the mortgage decree. The choice is left entirely with the decree- holder. The question arises, whether a decree which is framed as a composite decree as a matter of law, must be executed against the mortgage property first or can a money decree, which covers whole or part of the decretal amount covering mortgage decree can be executed earlier. There is nothing in law which provides such a composite decree to be first executed only against the principal debtor. The court further observed that the liability of the surety is co-extensive with the principal debtor, unless it is otherwise provided by the contract. 21. The term co-extensive has been defined in the celebrated book of Polock & Mulla on Indian Contract and Specific Relief Act, Tenth Edition, at page 728 as under: Co-extensive. - Suretys liability is co-extensive with that of the principal debtor. A suretys liability to pay the debt is not removed by reason of the creditors omission to sure the principal debtor. The creditor is not bound to exhaust his remedy against the principal before suing the surety, and a suit may be maintained against the surely though the principal has not been sued. 22. In Chitty on Contracts, 24th Edition, Volume 2 at page 1031 paragraph 4831 it is stated as under, Conditions precedent to liability of surety.- Prima facie the surety may be proceeded against without demand against him, and without first proceeding against the principal debtor. 23. In Halsburys Laws of England, Fourth Edition,Vol. 20, paragraph 159 at page 87 it has been observed that it is not necessary for the creditor, before proceeding against the surety, to request the principal debtor to pay, or to sue him, although solvent, unless this is expressly stipulated for. 24. A Division Bench of the Bombay High Court in Jagannath Ganeshram Agarwala v. Shivnarayan Bhagirath and Ors. AIR 1940 Bombay 247 held that the liability of the surety is co-extensive, but is not in the alternative. Both the principal debtor and the surety are liable at the same time to the creditors. 25. A Division Bench of the High Court of Karnataka, in The Hukumchand Insurance Co. Ltd. v. The Bank of Baroda & Others AIR 1977 Kant 204 had an occasion to consider the question of liability of the surety vis-a-vis the principal debtor. The court held as under:- The question as to the liability of the surety, its extent and the manner of its enforcement have to be decided on first principles as to the nature and incidents of suretyship. The liability of a principal debtor and the liability of a surety which is co- extensive with that of the former are really separate liabilities, although arising out of the same transaction. Notwithstanding the fact that they may stem from the same transaction, the two liabilities are distinct. The liability of the surety does not also, in all cases, arise simultaneously. 26. The case of the respondent has never been that the liability of the guarantor is only contingent and if remedies against the principal debtor failed to satisfy the dues of the decree holder, then only the bank can proceed against the guarantor. 27. Mr. Gupta also asserted that the remedy under section 19 of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 is not in derogation of section 40 of the IRBI Act. 28. In Transcore v. Union of India & Another (2008) 1 SCC 125, this Court in great detail examined whether withdrawal of suit pending before the Debts Recovery Tribunal under DRT Act is not a pre-condition for taking recourse to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. This court held that it is for the bank or the financial institution to exercise its discretion. 29. In A.P. State Financial Corporation v. M/s Gar Re-Rolling Mills & Another (1994) 2 SCC 647 this Court observed that the right vested in the corporation under section 29 of the Act is besides the right already possessed at common law to institute a suit or the right available to it under section 31 of the Act. In that case, it was further observed that on a conjoint reading of sections 29 and 31 of the said Act, it appears that in case of default in repayment of loan or any installment or any advance or breach of an agreement, the Corporation has two remedies available to it against the defaulting industrial concern, one under section 29 and another under section 31. Since, the corporation must be held entitled and given full protection by the court to recover its dues it cannot be bound down to adopt only one of the two remedies provided under the Act. The Court further held that the doctrine of election is not applicable to this case. 30. The legal position as crystallized by a series of cases of this court is clear that the liability of the guarantor and principle debtors are co-extensive and not in alternative. When we examine the impugned judgment in the light of the consistent position of law, then the obvious conclusion has to be that the High Court under its power of superintendence under Article 227 of the Constitution of India was not justified to stay further proceedings in O.A. 156 of 1997. | 1[ds]20. In State Bank of India v. M/s. Indexport Registered (supra), this Court held that the decree holder bank can execute the decree against the guarantor without proceeding against the principal borrower. Guarantors liability is coextensive with that of the principal debtor. In that case, this court further observed that, the execution of the money decree is not made dependent on first applying for execution of the mortgage decree. The choice is left entirely with the decreeholder. The question arises, whether a decree which is framed as a composite decree as a matter of law, must be executed against the mortgage property first or can a money decree, which covers whole or part of the decretal amount covering mortgage decree can be executed earlier. There is nothing in law which provides such a composite decree to be first executed only against the principal debtor. The court further observed that the liability of the surety ise with the principal debtor, unless it is otherwise provided by the contract23. In Halsburys Laws of England, Fourth Edition,Vol. 20, paragraph 159 at page 87 it has been observed that it is not necessary for the creditor, before proceeding against the surety, to request the principal debtor to pay, or to sue him, although solvent, unless this is expressly stipulated for24. A Division Bench of the Bombay High Court in Jagannath Ganeshram Agarwala v. Shivnarayan Bhagirath and Ors. AIR 1940 Bombay 247 held that the liability of the surety is, but is not in the alternative. Both the principal debtor and the surety are liable at the same time to the creditors25. A Division Bench of the High Court of Karnataka, in The Hukumchand Insurance Co. Ltd. v. The Bank of Baroda & Others AIR 1977 Kant 204 had an occasion to consider the question of liability of the surety26. The case of the respondent has never been that the liability of the guarantor is only contingent and if remedies against the principal debtor failed to satisfy the dues of the decree holder, then only the bank can proceed against the guarantor27. Mr. Gupta also asserted that the remedy under section 19 of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 is not in derogation of section 40 of the IRBI Act28. In Transcore v. Union of India & Another (2008) 1 SCC 125, this Court in great detail examined whether withdrawal of suit pending before the Debts Recovery Tribunal under DRT Act is not an for taking recourse to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. This court held that it is for the bank or the financial institution to exercise its discretion29. In A.P. State Financial Corporation v. M/s Garg Mills & Another (1994) 2 SCC 647 this Court observed that the right vested in the corporation under section 29 of the Act is besides the right already possessed at common law to institute a suit or the right available to it under section 31 of the Act. In that case, it was further observed that on a conjoint reading of sections 29 and 31 of the said Act, it appears that in case of default in repayment of loan or any installment or any advance or breach of an agreement, the Corporation has two remedies available to it against the defaulting industrial concern, one under section 29 and another under section 31. Since, the corporation must be held entitled and given full protection by the court to recover its dues it cannot be bound down to adopt only one of the two remedies provided under the Act. The Court further held that the doctrine of election is not applicable to this case30. The legal position as crystallized by a series of cases of this court is clear that the liability of the guarantor and principle debtors aree and not in alternative. When we examine the impugned judgment in the light of the consistent position of law, then the obvious conclusion has to be that the High Court under its power of superintendence under Article 227 of the Constitution of India was not justified to stay further proceedings in O.A. 156 of 1997. | 1 | 2,529 | 767 | ### 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:
his remedies against the surety. In the present case the creditor is a banking company. A guarantee is a collateral security usually taken by a banker. The security will become useless if his rights against the surety can be so easily cut down. 20. In State Bank of India v. M/s. Indexport Registered (supra), this Court held that the decree holder bank can execute the decree against the guarantor without proceeding against the principal borrower. Guarantors liability is co- extensive with that of the principal debtor. In that case, this court further observed that, the execution of the money decree is not made dependent on first applying for execution of the mortgage decree. The choice is left entirely with the decree- holder. The question arises, whether a decree which is framed as a composite decree as a matter of law, must be executed against the mortgage property first or can a money decree, which covers whole or part of the decretal amount covering mortgage decree can be executed earlier. There is nothing in law which provides such a composite decree to be first executed only against the principal debtor. The court further observed that the liability of the surety is co-extensive with the principal debtor, unless it is otherwise provided by the contract. 21. The term co-extensive has been defined in the celebrated book of Polock & Mulla on Indian Contract and Specific Relief Act, Tenth Edition, at page 728 as under: Co-extensive. - Suretys liability is co-extensive with that of the principal debtor. A suretys liability to pay the debt is not removed by reason of the creditors omission to sure the principal debtor. The creditor is not bound to exhaust his remedy against the principal before suing the surety, and a suit may be maintained against the surely though the principal has not been sued. 22. In Chitty on Contracts, 24th Edition, Volume 2 at page 1031 paragraph 4831 it is stated as under, Conditions precedent to liability of surety.- Prima facie the surety may be proceeded against without demand against him, and without first proceeding against the principal debtor. 23. In Halsburys Laws of England, Fourth Edition,Vol. 20, paragraph 159 at page 87 it has been observed that it is not necessary for the creditor, before proceeding against the surety, to request the principal debtor to pay, or to sue him, although solvent, unless this is expressly stipulated for. 24. A Division Bench of the Bombay High Court in Jagannath Ganeshram Agarwala v. Shivnarayan Bhagirath and Ors. AIR 1940 Bombay 247 held that the liability of the surety is co-extensive, but is not in the alternative. Both the principal debtor and the surety are liable at the same time to the creditors. 25. A Division Bench of the High Court of Karnataka, in The Hukumchand Insurance Co. Ltd. v. The Bank of Baroda & Others AIR 1977 Kant 204 had an occasion to consider the question of liability of the surety vis-a-vis the principal debtor. The court held as under:- The question as to the liability of the surety, its extent and the manner of its enforcement have to be decided on first principles as to the nature and incidents of suretyship. The liability of a principal debtor and the liability of a surety which is co- extensive with that of the former are really separate liabilities, although arising out of the same transaction. Notwithstanding the fact that they may stem from the same transaction, the two liabilities are distinct. The liability of the surety does not also, in all cases, arise simultaneously. 26. The case of the respondent has never been that the liability of the guarantor is only contingent and if remedies against the principal debtor failed to satisfy the dues of the decree holder, then only the bank can proceed against the guarantor. 27. Mr. Gupta also asserted that the remedy under section 19 of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 is not in derogation of section 40 of the IRBI Act. 28. In Transcore v. Union of India & Another (2008) 1 SCC 125, this Court in great detail examined whether withdrawal of suit pending before the Debts Recovery Tribunal under DRT Act is not a pre-condition for taking recourse to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. This court held that it is for the bank or the financial institution to exercise its discretion. 29. In A.P. State Financial Corporation v. M/s Gar Re-Rolling Mills & Another (1994) 2 SCC 647 this Court observed that the right vested in the corporation under section 29 of the Act is besides the right already possessed at common law to institute a suit or the right available to it under section 31 of the Act. In that case, it was further observed that on a conjoint reading of sections 29 and 31 of the said Act, it appears that in case of default in repayment of loan or any installment or any advance or breach of an agreement, the Corporation has two remedies available to it against the defaulting industrial concern, one under section 29 and another under section 31. Since, the corporation must be held entitled and given full protection by the court to recover its dues it cannot be bound down to adopt only one of the two remedies provided under the Act. The Court further held that the doctrine of election is not applicable to this case. 30. The legal position as crystallized by a series of cases of this court is clear that the liability of the guarantor and principle debtors are co-extensive and not in alternative. When we examine the impugned judgment in the light of the consistent position of law, then the obvious conclusion has to be that the High Court under its power of superintendence under Article 227 of the Constitution of India was not justified to stay further proceedings in O.A. 156 of 1997.
### Response:
1
### Explanation:
20. In State Bank of India v. M/s. Indexport Registered (supra), this Court held that the decree holder bank can execute the decree against the guarantor without proceeding against the principal borrower. Guarantors liability is coextensive with that of the principal debtor. In that case, this court further observed that, the execution of the money decree is not made dependent on first applying for execution of the mortgage decree. The choice is left entirely with the decreeholder. The question arises, whether a decree which is framed as a composite decree as a matter of law, must be executed against the mortgage property first or can a money decree, which covers whole or part of the decretal amount covering mortgage decree can be executed earlier. There is nothing in law which provides such a composite decree to be first executed only against the principal debtor. The court further observed that the liability of the surety ise with the principal debtor, unless it is otherwise provided by the contract23. In Halsburys Laws of England, Fourth Edition,Vol. 20, paragraph 159 at page 87 it has been observed that it is not necessary for the creditor, before proceeding against the surety, to request the principal debtor to pay, or to sue him, although solvent, unless this is expressly stipulated for24. A Division Bench of the Bombay High Court in Jagannath Ganeshram Agarwala v. Shivnarayan Bhagirath and Ors. AIR 1940 Bombay 247 held that the liability of the surety is, but is not in the alternative. Both the principal debtor and the surety are liable at the same time to the creditors25. A Division Bench of the High Court of Karnataka, in The Hukumchand Insurance Co. Ltd. v. The Bank of Baroda & Others AIR 1977 Kant 204 had an occasion to consider the question of liability of the surety26. The case of the respondent has never been that the liability of the guarantor is only contingent and if remedies against the principal debtor failed to satisfy the dues of the decree holder, then only the bank can proceed against the guarantor27. Mr. Gupta also asserted that the remedy under section 19 of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 is not in derogation of section 40 of the IRBI Act28. In Transcore v. Union of India & Another (2008) 1 SCC 125, this Court in great detail examined whether withdrawal of suit pending before the Debts Recovery Tribunal under DRT Act is not an for taking recourse to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. This court held that it is for the bank or the financial institution to exercise its discretion29. In A.P. State Financial Corporation v. M/s Garg Mills & Another (1994) 2 SCC 647 this Court observed that the right vested in the corporation under section 29 of the Act is besides the right already possessed at common law to institute a suit or the right available to it under section 31 of the Act. In that case, it was further observed that on a conjoint reading of sections 29 and 31 of the said Act, it appears that in case of default in repayment of loan or any installment or any advance or breach of an agreement, the Corporation has two remedies available to it against the defaulting industrial concern, one under section 29 and another under section 31. Since, the corporation must be held entitled and given full protection by the court to recover its dues it cannot be bound down to adopt only one of the two remedies provided under the Act. The Court further held that the doctrine of election is not applicable to this case30. The legal position as crystallized by a series of cases of this court is clear that the liability of the guarantor and principle debtors aree and not in alternative. When we examine the impugned judgment in the light of the consistent position of law, then the obvious conclusion has to be that the High Court under its power of superintendence under Article 227 of the Constitution of India was not justified to stay further proceedings in O.A. 156 of 1997.
|
Oriental Aroma Chemical Indus.Ltd Vs. Gujarat Indisl.Devt.Corp | 9. In the light of the above, it is to be seen whether the respondents had offered any plausible/tangible explanation for the long delay of more than four years in filing of appeal and the High Court was justified in condoning the delay. 10. A reading of the impugned order makes it clear that the High Court did make a bald reference to the application for condonation of delay filed by the respondents but allowed the same without adverting to the averments contained therein and the reply filed on behalf of the appellant. Not only this, the High Court erroneously assumed that the delay was of 1067 days, though, as a matter of fact, the appeal was filed after more than four years. Another erroneous assumption made by the High Court was that the appellant had not filed reply to controvert the averments contained in the application for condonation of delay. It may have been possible for this Court to ignore the first error in the impugned order because by deleting the figures and words "4 years and 28" in paragraphs 2 and 3 of the application and substituting the same with the figure 1067, the respondents misled the High Court in believing that the delay was of 1067 days only but it is not possible to fathom any reason why the Division Bench of the High Court omitted to consider the detailed reply which had been filed on behalf of the appellant to contest the prayer for condonation of delay. Notwithstanding this, we may have set aside the impugned order and remitted the case to the High Court for fresh disposal of the application filed by the respondents under Section 5 of the Limitation Act but, do not consider it proper to adopt that course, because as will be seen hereinafter, the respondents did not approach the High Court with clean hands. 11. The statement containing the list of events annexed with the affidavit of Shri Harishbhai Patel shows that before filing suit, the appellant had issued notice dated 5.2.2001 to which respondent No.1 sent reply dated 13.3.2001. The summons of Special Civil Suit No. 32/2001 instituted by the appellant were served upon the respondents sometime in the month of April/May 2001. On 16.5.2001, General Manager (Law) instructed Ms. Rekhaben M. Patel to appear on behalf of the respondents. Executive Engineer, Ankleshwar was also directed to contact the advocate for preparing the reply affidavit. On 23.5.2001, Deputy Executive Engineer, Ankleshwar forwarded the comments to Ms. Rekhaben M. Patel. On 18.4.2002, the appellant filed an application for ex parte proceedings against the respondents. On 30.11.2002, the trial Court directed the respondents to appear on 12.12.2002 with indication that if they fail to do so, ex parte proceedings will be held. Thereupon, General Manager (Law) wrote letter dated 10.12.2002 to Ms. Rekhaben to remain present on the next date of hearing i.e., 12.12.2002. On 30th December, 2002, Deputy Executive Engineer, Ankleshwar wrote to the advocate in the matter of submission of para-wise comments. On 2.1.2003, the Executive Engineer is said to have sent a letter to the advocate informing her about the next date of hearing i.e., 10.1.2003 and asked her to remain present. After almost one year and ten months, the trial Court pronounced the ex parte judgment and decreed the suit. The summons of the second suit were received sometime in May, 2005. On 20.6.2005, Shri B.R. Sharma, Advocate was instructed to appear on behalf of the respondents. On 10.1.2006, Deputy Executive Engineer, Ankleshwar informed the new advocate about the next date of hearing which was 23.1.2006. The second suit was decreed on 12.12.2007. 12. During the course of hearing, learned counsel for the respondents fairly conceded that in the second suit filed by the appellant there was a specific mention of decree dated 30.10.2004 passed in Special Civil Suit No. 32/2001. He also conceded that even though the first suit remained pending before the trial Court for three years and five months and the second suit remained pending for more than two years, none of the officers of the Law Department or the Engineering Department of respondent No.1 appeared before the Court. 13. From what we have noted above, it is clear that the Law Department of respondent No.1 was very much aware of the proceedings of the first as well as the second suit. In the first case, Ms. Rekhaben M. Patel was appointed as an advocate and in the second case Shri B.R. Sharma was instructed to appear on behalf of the respondents, but none of the officers is shown to have personally contacted either of the advocates for the purpose of filing written statement and preparation of the case and none bothered to appear before the trial Court on any of the dates of hearing. It is a matter of surprise that even though an officer of the rank of General Manager (Law) had issued instructions to Ms. Rekhaben M. Patel to appear and file vakalat as early as in May 2001 and Manager (Law) had given vakalat to Shri B.R. Sharma, Advocate in the month of May 2005, in the application filed for condonation of delay, the respondents boldly stated that the Law Department came to know about the ex parte decree only in the month of January/February 2008. The respondents went to the extent of suggesting that the parties may have arranged or joined hands with some employee of the corporation and that may be the reason why after engaging advocates, nobody contacted them for the purpose of giving instructions for filing written statement and giving appropriate instructions which resulted in passing of the ex parte decrees. In our view, the above statement contained in para 1 of the application is not only incorrect but is ex facie false and the High Court committed grave error by condoning more than four years delay in filing of appeal ignoring the judicially accepted parameters for exercise of discretion under Section 5 of the Limitation Act. | 1[ds]13. From what we have noted above, it is clear that the Law Department of respondent No.1 was very much aware of the proceedings of the first as well as the second suit. In the first case, Ms. Rekhaben M. Patel was appointed as an advocate and in the second case Shri B.R. Sharma was instructed to appear on behalf of the respondents, but none of the officers is shown to have personally contacted either of the advocates for the purpose of filing written statement and preparation of the case and none bothered to appear before the trial Court on any of the dates of hearing. It is a matter of surprise that even though an officer of the rank of General Manager (Law) had issued instructions to Ms. Rekhaben M. Patel to appear and file vakalat as early as in May 2001 and Manager (Law) had given vakalat to Shri B.R. Sharma, Advocate in the month of May 2005, in the application filed for condonation of delay, the respondents boldly stated that the Law Department came to know about the ex parte decree only in the month of January/February 2008. The respondents went to the extent of suggesting that the parties may have arranged or joined hands with some employee of the corporation and that may be the reason why after engaging advocates, nobody contacted them for the purpose of giving instructions for filing written statement and giving appropriate instructions which resulted in passing of the ex parte decrees. In our view, the above statement contained in para 1 of the application is not only incorrect but is ex facie false and the High Court committed grave error by condoning more than four years delay in filing of appeal ignoring the judicially accepted parameters for exercise of discretion under Section 5 of the Limitation Act.A reading of the impugned order makes it clear that the High Court did make a bald reference to the application for condonation of delay filed by the respondents but allowed the same without adverting to the averments contained therein and the reply filed on behalf of the appellant. Not only this, the High Court erroneously assumed that the delay was of 1067 days, though, as a matter of fact, the appeal was filed after more than four years. Another erroneous assumption made by the High Court was that the appellant had not filed reply to controvert the averments contained in the application for condonation of delay. It may have been possible for this Court to ignore the first error in the impugned order because by deleting the figures and words "4 years and 28" in paragraphs 2 and 3 of the application and substituting the same with the figure 1067, the respondents misled the High Court in believing that the delay was of 1067 days only but it is not possible to fathom any reason why the Division Bench of the High Court omitted to consider the detailed reply which had been filed on behalf of the appellant to contest the prayer for condonation of delay. Notwithstanding this, we may have set aside the impugned order and remitted the case to the High Court for fresh disposal of the application filed by the respondents under Section 5 of the Limitation Act but, do not consider it proper to adopt that course, because as will be seen hereinafter, the respondents did not approach the High Court with clean hands.During the course of hearing, learned counsel for the respondents fairly conceded that in the second suit filed by the appellant there was a specific mention of decree dated 30.10.2004 passed in Special Civil Suit No. 32/2001. He also conceded that even though the first suit remained pending before the trial Court for three years and five months and the second suit remained pending for more than two years, none of the officers of the Law Department or the Engineering Department of respondent No.1 appeared before the Court. | 1 | 4,069 | 704 | ### 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:
9. In the light of the above, it is to be seen whether the respondents had offered any plausible/tangible explanation for the long delay of more than four years in filing of appeal and the High Court was justified in condoning the delay. 10. A reading of the impugned order makes it clear that the High Court did make a bald reference to the application for condonation of delay filed by the respondents but allowed the same without adverting to the averments contained therein and the reply filed on behalf of the appellant. Not only this, the High Court erroneously assumed that the delay was of 1067 days, though, as a matter of fact, the appeal was filed after more than four years. Another erroneous assumption made by the High Court was that the appellant had not filed reply to controvert the averments contained in the application for condonation of delay. It may have been possible for this Court to ignore the first error in the impugned order because by deleting the figures and words "4 years and 28" in paragraphs 2 and 3 of the application and substituting the same with the figure 1067, the respondents misled the High Court in believing that the delay was of 1067 days only but it is not possible to fathom any reason why the Division Bench of the High Court omitted to consider the detailed reply which had been filed on behalf of the appellant to contest the prayer for condonation of delay. Notwithstanding this, we may have set aside the impugned order and remitted the case to the High Court for fresh disposal of the application filed by the respondents under Section 5 of the Limitation Act but, do not consider it proper to adopt that course, because as will be seen hereinafter, the respondents did not approach the High Court with clean hands. 11. The statement containing the list of events annexed with the affidavit of Shri Harishbhai Patel shows that before filing suit, the appellant had issued notice dated 5.2.2001 to which respondent No.1 sent reply dated 13.3.2001. The summons of Special Civil Suit No. 32/2001 instituted by the appellant were served upon the respondents sometime in the month of April/May 2001. On 16.5.2001, General Manager (Law) instructed Ms. Rekhaben M. Patel to appear on behalf of the respondents. Executive Engineer, Ankleshwar was also directed to contact the advocate for preparing the reply affidavit. On 23.5.2001, Deputy Executive Engineer, Ankleshwar forwarded the comments to Ms. Rekhaben M. Patel. On 18.4.2002, the appellant filed an application for ex parte proceedings against the respondents. On 30.11.2002, the trial Court directed the respondents to appear on 12.12.2002 with indication that if they fail to do so, ex parte proceedings will be held. Thereupon, General Manager (Law) wrote letter dated 10.12.2002 to Ms. Rekhaben to remain present on the next date of hearing i.e., 12.12.2002. On 30th December, 2002, Deputy Executive Engineer, Ankleshwar wrote to the advocate in the matter of submission of para-wise comments. On 2.1.2003, the Executive Engineer is said to have sent a letter to the advocate informing her about the next date of hearing i.e., 10.1.2003 and asked her to remain present. After almost one year and ten months, the trial Court pronounced the ex parte judgment and decreed the suit. The summons of the second suit were received sometime in May, 2005. On 20.6.2005, Shri B.R. Sharma, Advocate was instructed to appear on behalf of the respondents. On 10.1.2006, Deputy Executive Engineer, Ankleshwar informed the new advocate about the next date of hearing which was 23.1.2006. The second suit was decreed on 12.12.2007. 12. During the course of hearing, learned counsel for the respondents fairly conceded that in the second suit filed by the appellant there was a specific mention of decree dated 30.10.2004 passed in Special Civil Suit No. 32/2001. He also conceded that even though the first suit remained pending before the trial Court for three years and five months and the second suit remained pending for more than two years, none of the officers of the Law Department or the Engineering Department of respondent No.1 appeared before the Court. 13. From what we have noted above, it is clear that the Law Department of respondent No.1 was very much aware of the proceedings of the first as well as the second suit. In the first case, Ms. Rekhaben M. Patel was appointed as an advocate and in the second case Shri B.R. Sharma was instructed to appear on behalf of the respondents, but none of the officers is shown to have personally contacted either of the advocates for the purpose of filing written statement and preparation of the case and none bothered to appear before the trial Court on any of the dates of hearing. It is a matter of surprise that even though an officer of the rank of General Manager (Law) had issued instructions to Ms. Rekhaben M. Patel to appear and file vakalat as early as in May 2001 and Manager (Law) had given vakalat to Shri B.R. Sharma, Advocate in the month of May 2005, in the application filed for condonation of delay, the respondents boldly stated that the Law Department came to know about the ex parte decree only in the month of January/February 2008. The respondents went to the extent of suggesting that the parties may have arranged or joined hands with some employee of the corporation and that may be the reason why after engaging advocates, nobody contacted them for the purpose of giving instructions for filing written statement and giving appropriate instructions which resulted in passing of the ex parte decrees. In our view, the above statement contained in para 1 of the application is not only incorrect but is ex facie false and the High Court committed grave error by condoning more than four years delay in filing of appeal ignoring the judicially accepted parameters for exercise of discretion under Section 5 of the Limitation Act.
### Response:
1
### Explanation:
13. From what we have noted above, it is clear that the Law Department of respondent No.1 was very much aware of the proceedings of the first as well as the second suit. In the first case, Ms. Rekhaben M. Patel was appointed as an advocate and in the second case Shri B.R. Sharma was instructed to appear on behalf of the respondents, but none of the officers is shown to have personally contacted either of the advocates for the purpose of filing written statement and preparation of the case and none bothered to appear before the trial Court on any of the dates of hearing. It is a matter of surprise that even though an officer of the rank of General Manager (Law) had issued instructions to Ms. Rekhaben M. Patel to appear and file vakalat as early as in May 2001 and Manager (Law) had given vakalat to Shri B.R. Sharma, Advocate in the month of May 2005, in the application filed for condonation of delay, the respondents boldly stated that the Law Department came to know about the ex parte decree only in the month of January/February 2008. The respondents went to the extent of suggesting that the parties may have arranged or joined hands with some employee of the corporation and that may be the reason why after engaging advocates, nobody contacted them for the purpose of giving instructions for filing written statement and giving appropriate instructions which resulted in passing of the ex parte decrees. In our view, the above statement contained in para 1 of the application is not only incorrect but is ex facie false and the High Court committed grave error by condoning more than four years delay in filing of appeal ignoring the judicially accepted parameters for exercise of discretion under Section 5 of the Limitation Act.A reading of the impugned order makes it clear that the High Court did make a bald reference to the application for condonation of delay filed by the respondents but allowed the same without adverting to the averments contained therein and the reply filed on behalf of the appellant. Not only this, the High Court erroneously assumed that the delay was of 1067 days, though, as a matter of fact, the appeal was filed after more than four years. Another erroneous assumption made by the High Court was that the appellant had not filed reply to controvert the averments contained in the application for condonation of delay. It may have been possible for this Court to ignore the first error in the impugned order because by deleting the figures and words "4 years and 28" in paragraphs 2 and 3 of the application and substituting the same with the figure 1067, the respondents misled the High Court in believing that the delay was of 1067 days only but it is not possible to fathom any reason why the Division Bench of the High Court omitted to consider the detailed reply which had been filed on behalf of the appellant to contest the prayer for condonation of delay. Notwithstanding this, we may have set aside the impugned order and remitted the case to the High Court for fresh disposal of the application filed by the respondents under Section 5 of the Limitation Act but, do not consider it proper to adopt that course, because as will be seen hereinafter, the respondents did not approach the High Court with clean hands.During the course of hearing, learned counsel for the respondents fairly conceded that in the second suit filed by the appellant there was a specific mention of decree dated 30.10.2004 passed in Special Civil Suit No. 32/2001. He also conceded that even though the first suit remained pending before the trial Court for three years and five months and the second suit remained pending for more than two years, none of the officers of the Law Department or the Engineering Department of respondent No.1 appeared before the Court.
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Vinodkumar M Malavia Vs. Maganlal Mangaldas Gameti | respondents approached the Civil Court under Section 72(1) of the Act and the Civil Court correctly exercised jurisdiction over the same. 23. The question regarding the admissibility of evidence adduced before the Charity Commissioner has been adequately addressed by the High Court and we do not find any reason to interfere with the same. The observations of the High Court in this regard are as under : “21…It is well accepted that though the Charity Commissioner is not the Court, the procedure is to be followed like the Civil Court. The procedure as provided in the Civil Procedure Code would mutatis mutandis apply. In other words, though the Charity Commissioner has discretion to have evolved his own procedure, normal procedure under the Civil Procedure Code is followed in such matter. It is required to be mentioned that even though strictly Civil Procedure Court (sic) may not be applicable, still the procedure is required to be followed in order to provide fair opportunity to other side to contest on every issue including the documents, which are sought to be produced and also to decide the probative value after it is exhibited as per the Evidence Act. Therefore, it is necessary that all such Resolutions etc. ought to have been placed on record, which has not been done. Therefore, what was not forming the part of the record in the original proceedings cannot be permitted to be supplemented by way of explanation in appeal.” The appellants in this regard cited this Court’s decision in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr. [2003 (8) SCC 752 ], wherein this Court held that the High Court was incorrect in rejecting the photocopies of documents as they were not originals. In this light, since the Charity Commissioner is not required to strictly adhere to the procedure under the Code of Civil Procedure, 1908 and the Evidence Act, 1872, the evidence submitted before the Charity Commissioner may be admissible unless they are against the basic principles of Evidence Law. 24. Finally answering the question raised by the appellants regarding the scope of inquiry of the Charity Commissioner under Section 22 of the Act, this Court in Church of North India (supra) very aptly provided a bird’s eye view of Section 22 which is provided as under : “….Section 22 provides for the change which may occur in any of the entries recorded in the register kept under Section 17 to make an appropriate application within 90 days from the date of the occurrence of such change. Sub-section (1A) of Section 22 reads thus:“(1A) Where the change to be reported under sub- section (1) relates to any immovable property, the trustee shall, alongwith the report, furnish a memorandum in the prescribed form containing the particulars (including the name and description of the public trust) relating to any change in the immovable property of such public trust, for forwarding it to the sub-registrar referred to in sub- section (7) of section 18.”31. Sub-section (2) of Section 22 empowers a Deputy or Assistant Charity Commissioner to hold an inquiry for the purpose of verifying the correctness of the entries in the register kept under Section 17 or ascertaining whether any change has occurred in any of the particulars recorded therein. In the event, a change is found to have occurred in any of the entries recorded in the register kept under Section 17, the Deputy or Assistant Charity Commissioner is required to record a finding with the reasons therefore to that effect. Such an order is appealable to the Charity Commissioner. By reason of changes which have been found to have occurred, the entries in the register are required to be amended. Such amendment on the occurrence of change is final and conclusive.” 25. After analysing the facts and the law in the matter, we have noticed that it is the duty of the society to take steps in accordance with Section 13 of the SR Act for its dissolution. We have further noted that unless the properties vested in the Trust are divested in accordance with the provisions of the SR Act and in accordance with the BPTA, merely by filing the Change Report/s, CNI cannot claim a merger of churches and thereby claim that the properties vested in the Trust would vest in them. In our opinion, it would only be evident from the steps taken that the passing of resolutions is nothing but an indication to show the intention to merge and nothing else. In fact, the City Civil Court has correctly held, in our opinion, which has been affirmed by the High Court, that there was no dissolution of the society and further merger was not carried out in accordance with the provisions of law. In these circumstances, we hold that the society and the Trust being creatures of statute, have to resort to the modes provided by the statute for its amalgamation and the so-called merger cannot be treated or can give effect to the dissolution of the Trust. In the matrix of the facts, we hold that without taking any steps in accordance with the provisions of law, the effect of the resolutions or deliberations is not acceptable in the domain of law. The question of estoppel also cannot stand in the way as the High Court has correctly pointed out that the freedom guaranteed under the Constitution with regard to the faith and religion, cannot take away the right in changing the faith and religion after giving a fresh look and thinking at any time and thereby cannot be bound by any rules of estoppel. Therefore, the resolution only resolved to accept the recommendation of joint unification but does not refer to dissolution. 26. Having analysed the facts and the law in the matter, we are of the opinion that the High Court and the City Civil Court have rightly adjudicated on the matter in question and correctly set aside the order passed by the Charity Commissioner. 27. | 0[ds]we are of the opinion that the questions regarding the validity of the unification process have been answered in the observations made by this Court in Church of North India v. Lavajibhai Ratanjibhai & Ors. (supra), wherein the matter was regarding the bar of jurisdiction of the Civil Court under Section 80 of the BPT Act. This Court in the aforementioned matter delineated the jurisdiction of the authorities and the Civil Court under the BPT Act and under what circumstances which body hasare of the opinion that thereliance on the abovementioned two judgments is misplaced. In The Commissioner, Hindu Religious Endowments, Madras (supra), this Court while adjudicating upon the validity of Sections 21, 30(2), 31, 55, 56 and 63 to 69 of the Madras Hindu Religious and Charitable Endowments Act, 1951 against Articles 19(1)(f), 25 and 26 of the Constitution of India and examining the distinction between tax and fee, held that the Sections were ultra vires and Section 76 (1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 was void. It was also held that a levy under this section does not attract Article 27 as it was for the maintenance of the religious trust despite being a tax. While deciding on the above, this Court delved into many questions regarding the scope of religion and recognized the reservations to the freedom of religion under Article 25(2) and that the State is empowered to legislate on the secular activities ancillary to practice of religion and that the courts are empowered to decide whether the same is an integral part of religious practice or a secular part. In Ratilal Panachand Gandhi (supra), the validity of Section 44 and levy under Section 58 of the BPTA was questioned against Articles 25 and 26. As per this Court, Section 44 was held to be unconstitutional. However, the levy under Section 58 was termed as a fee and was allowed. While deciding on the same, this Court once again reiterated on the power of the Government to legislate on regulating the secular aspects of religious practice as allowed under clause (2) of Articleanalysing the facts and the law in the matter, we have noticed that it is the duty of the society to take steps in accordance with Section 13 of the SR Act for its dissolution. We have further noted that unless the properties vested in the Trust are divested in accordance with the provisions of the SR Act and in accordance with the BPTA, merely by filing the Change Report/s, CNI cannot claim a merger of churches and thereby claim that the properties vested in the Trust would vest in them. In our opinion, it would only be evident from the steps taken that the passing of resolutions is nothing but an indication to show the intention to merge and nothing else. In fact, the City Civil Court has correctly held, in our opinion, which has been affirmed by the High Court, that there was no dissolution of the society and further merger was not carried out in accordance with the provisions of law. In these circumstances, we hold that the society and the Trust being creatures of statute, have to resort to the modes provided by the statute for its amalgamation and the so-called merger cannot be treated or can give effect to the dissolution of the Trust. In the matrix of the facts, we hold that without taking any steps in accordance with the provisions of law, the effect of the resolutions or deliberations is not acceptable in the domain of law. The question of estoppel also cannot stand in the way as the High Court has correctly pointed out that the freedom guaranteed under the Constitution with regard to the faith and religion, cannot take away the right in changing the faith and religion after giving a fresh look and thinking at any time and thereby cannot be bound by any rules of estoppel. Therefore, the resolution only resolved to accept the recommendation of joint unification but does not refer to dissolution. | 0 | 9,492 | 755 | ### Instruction:
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respondents approached the Civil Court under Section 72(1) of the Act and the Civil Court correctly exercised jurisdiction over the same. 23. The question regarding the admissibility of evidence adduced before the Charity Commissioner has been adequately addressed by the High Court and we do not find any reason to interfere with the same. The observations of the High Court in this regard are as under : “21…It is well accepted that though the Charity Commissioner is not the Court, the procedure is to be followed like the Civil Court. The procedure as provided in the Civil Procedure Code would mutatis mutandis apply. In other words, though the Charity Commissioner has discretion to have evolved his own procedure, normal procedure under the Civil Procedure Code is followed in such matter. It is required to be mentioned that even though strictly Civil Procedure Court (sic) may not be applicable, still the procedure is required to be followed in order to provide fair opportunity to other side to contest on every issue including the documents, which are sought to be produced and also to decide the probative value after it is exhibited as per the Evidence Act. Therefore, it is necessary that all such Resolutions etc. ought to have been placed on record, which has not been done. Therefore, what was not forming the part of the record in the original proceedings cannot be permitted to be supplemented by way of explanation in appeal.” The appellants in this regard cited this Court’s decision in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr. [2003 (8) SCC 752 ], wherein this Court held that the High Court was incorrect in rejecting the photocopies of documents as they were not originals. In this light, since the Charity Commissioner is not required to strictly adhere to the procedure under the Code of Civil Procedure, 1908 and the Evidence Act, 1872, the evidence submitted before the Charity Commissioner may be admissible unless they are against the basic principles of Evidence Law. 24. Finally answering the question raised by the appellants regarding the scope of inquiry of the Charity Commissioner under Section 22 of the Act, this Court in Church of North India (supra) very aptly provided a bird’s eye view of Section 22 which is provided as under : “….Section 22 provides for the change which may occur in any of the entries recorded in the register kept under Section 17 to make an appropriate application within 90 days from the date of the occurrence of such change. Sub-section (1A) of Section 22 reads thus:“(1A) Where the change to be reported under sub- section (1) relates to any immovable property, the trustee shall, alongwith the report, furnish a memorandum in the prescribed form containing the particulars (including the name and description of the public trust) relating to any change in the immovable property of such public trust, for forwarding it to the sub-registrar referred to in sub- section (7) of section 18.”31. Sub-section (2) of Section 22 empowers a Deputy or Assistant Charity Commissioner to hold an inquiry for the purpose of verifying the correctness of the entries in the register kept under Section 17 or ascertaining whether any change has occurred in any of the particulars recorded therein. In the event, a change is found to have occurred in any of the entries recorded in the register kept under Section 17, the Deputy or Assistant Charity Commissioner is required to record a finding with the reasons therefore to that effect. Such an order is appealable to the Charity Commissioner. By reason of changes which have been found to have occurred, the entries in the register are required to be amended. Such amendment on the occurrence of change is final and conclusive.” 25. After analysing the facts and the law in the matter, we have noticed that it is the duty of the society to take steps in accordance with Section 13 of the SR Act for its dissolution. We have further noted that unless the properties vested in the Trust are divested in accordance with the provisions of the SR Act and in accordance with the BPTA, merely by filing the Change Report/s, CNI cannot claim a merger of churches and thereby claim that the properties vested in the Trust would vest in them. In our opinion, it would only be evident from the steps taken that the passing of resolutions is nothing but an indication to show the intention to merge and nothing else. In fact, the City Civil Court has correctly held, in our opinion, which has been affirmed by the High Court, that there was no dissolution of the society and further merger was not carried out in accordance with the provisions of law. In these circumstances, we hold that the society and the Trust being creatures of statute, have to resort to the modes provided by the statute for its amalgamation and the so-called merger cannot be treated or can give effect to the dissolution of the Trust. In the matrix of the facts, we hold that without taking any steps in accordance with the provisions of law, the effect of the resolutions or deliberations is not acceptable in the domain of law. The question of estoppel also cannot stand in the way as the High Court has correctly pointed out that the freedom guaranteed under the Constitution with regard to the faith and religion, cannot take away the right in changing the faith and religion after giving a fresh look and thinking at any time and thereby cannot be bound by any rules of estoppel. Therefore, the resolution only resolved to accept the recommendation of joint unification but does not refer to dissolution. 26. Having analysed the facts and the law in the matter, we are of the opinion that the High Court and the City Civil Court have rightly adjudicated on the matter in question and correctly set aside the order passed by the Charity Commissioner. 27.
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we are of the opinion that the questions regarding the validity of the unification process have been answered in the observations made by this Court in Church of North India v. Lavajibhai Ratanjibhai & Ors. (supra), wherein the matter was regarding the bar of jurisdiction of the Civil Court under Section 80 of the BPT Act. This Court in the aforementioned matter delineated the jurisdiction of the authorities and the Civil Court under the BPT Act and under what circumstances which body hasare of the opinion that thereliance on the abovementioned two judgments is misplaced. In The Commissioner, Hindu Religious Endowments, Madras (supra), this Court while adjudicating upon the validity of Sections 21, 30(2), 31, 55, 56 and 63 to 69 of the Madras Hindu Religious and Charitable Endowments Act, 1951 against Articles 19(1)(f), 25 and 26 of the Constitution of India and examining the distinction between tax and fee, held that the Sections were ultra vires and Section 76 (1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 was void. It was also held that a levy under this section does not attract Article 27 as it was for the maintenance of the religious trust despite being a tax. While deciding on the above, this Court delved into many questions regarding the scope of religion and recognized the reservations to the freedom of religion under Article 25(2) and that the State is empowered to legislate on the secular activities ancillary to practice of religion and that the courts are empowered to decide whether the same is an integral part of religious practice or a secular part. In Ratilal Panachand Gandhi (supra), the validity of Section 44 and levy under Section 58 of the BPTA was questioned against Articles 25 and 26. As per this Court, Section 44 was held to be unconstitutional. However, the levy under Section 58 was termed as a fee and was allowed. While deciding on the same, this Court once again reiterated on the power of the Government to legislate on regulating the secular aspects of religious practice as allowed under clause (2) of Articleanalysing the facts and the law in the matter, we have noticed that it is the duty of the society to take steps in accordance with Section 13 of the SR Act for its dissolution. We have further noted that unless the properties vested in the Trust are divested in accordance with the provisions of the SR Act and in accordance with the BPTA, merely by filing the Change Report/s, CNI cannot claim a merger of churches and thereby claim that the properties vested in the Trust would vest in them. In our opinion, it would only be evident from the steps taken that the passing of resolutions is nothing but an indication to show the intention to merge and nothing else. In fact, the City Civil Court has correctly held, in our opinion, which has been affirmed by the High Court, that there was no dissolution of the society and further merger was not carried out in accordance with the provisions of law. In these circumstances, we hold that the society and the Trust being creatures of statute, have to resort to the modes provided by the statute for its amalgamation and the so-called merger cannot be treated or can give effect to the dissolution of the Trust. In the matrix of the facts, we hold that without taking any steps in accordance with the provisions of law, the effect of the resolutions or deliberations is not acceptable in the domain of law. The question of estoppel also cannot stand in the way as the High Court has correctly pointed out that the freedom guaranteed under the Constitution with regard to the faith and religion, cannot take away the right in changing the faith and religion after giving a fresh look and thinking at any time and thereby cannot be bound by any rules of estoppel. Therefore, the resolution only resolved to accept the recommendation of joint unification but does not refer to dissolution.
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Podar Mills Limited Vs. J.K. Synthetics Limited | 8(1)(c) refers to proceedings other than winding up proceedings under the Companies Act. We do not see any reason why section 8(1)(c) should be construed in this fashion, The intention of section 8(1) (c) is clearly to prevent a textile Company whose undertaking is covered by the said Act from being wound up. There are other provisions also in the said Act which support this construction. For example under section 4 sub-section (2) on the appointment of a custodian the management of the textile undertaking shall vest in such custodian and all persons in charge of the management shall cease to be in charge of such management. Under sub-section (8) of section 4 every person having possession, custody or control of any property forming part of the textile undertaking is also required to the deliver such property to the custodian. Therefore, every person who is in possession of such textile undertaking is required to hand over possession to the custodian. The Act therefore, clearly contemplates that textile undertakings which are covered by the Act should be in the possession of the custodian an not any other party, including Receiver or Liquidator.11. In the case of (Maharashtra State Textile Corporation Ltd. v. The Official Liquidator and others)2, reported in A.I.R. 1978 S.C. 476 the Supreme Court was required to construe the provisions of Sick Textile Undertakings (Taking Over of Management) Act of 1972. Under section 8(1) of that Act it was provided as follows : No proceeding for the winding up of a textile Company, within the meaning of this Act, shall lie in any Court or be continued whether by or under the supervision of any Court or voluntarily, except with the consent of the Central Government.Analysing this provision the Supreme Court held that the consent of the Central Government was necessary before pending proceedings were continued. In the course of its judgment the Supreme Court observed. In our opinion, the words winding up must be given the widest possible amplitude in order to serve the purpose of the Act namely, to control the proceedings of a textile Company which is in liquidation, by the Central Government. Whether the Company had been wound up or whether the proceedings for the winding up of the Company had been continuing would make no difference so far as the application of section 8 of the Management Act is concerned.12. In the present case also the words winding up in section 8 of the present Act require to be given the widest amplitude, especially when section 8 (1)(c) clearly sets out that a liquidator cannot be appointed by the Court in a proceeding unless the proceeding is with the consent of the Central Government. Undoubtedly the language of section 8 (1) of the Sick Textile Undertakings (Taking Over of Management) Act, 1972 is somewhat different from the language of section 8 (1) (c) of the present Act. It is true that under section 8 (1) of the Sick Textile Undertakings (Taking Over of Management) Act, 1972 the section refers expressly to proceedings being continued. Such words are absent in the present section 8 (1)(c). But section 8 (1)(c) refers both to proceeding for winding up as also for the appointment of a liquidator or receiver. Therefore, in a pending winding up proceeding where the liquidator is required to be appointed after the coming into operation of the said Act the consent of the Central Government is necessary before the proceeding for the appointment of a liquidator can be continued.13. The words shall lie in section 8(1)(c) in this context do not necessarily refer only to a prospective proceeding. They mean shall be entertained. Under section 10 also it is provided, that no suit etc. shall lie against the Central Government or the custodian for anything which is in good faith done or intended to be done under the Act. It is submitted that the words shall lie in section 10 are clearly prospective. The same phrase is used in section 8. Hence in section 8 also the phrase must be construed as prospective. This contention must be rejected. It is the context of section 10 which makes the provisions of section 10 prospective because section 10 deals with proceedings against the Central Government or the custodian for anything done or intended to be done under the Act. Such Proceeding must necessarily be in respect of anything done after the commencement of the Act. The use of the phrase "shall lie" in section 10 is therefore not responsible for making the section prospective. The phrase in both sections 8 and 10 is intended to mean shall be entertained and nothing more. In our view looking to the provisions of section 8(1)(c) the section applies equally to a pending proceeding for winding up of the Company at the time when the Act came into operation.14. It was finally urged by the respondents that the consent order is a self operative order. It provides for admission of the petition and its advertisement. There is no reason why the petition should not be advertised. It was also urged that at the time of the final hearing of the Company petition for winding up after the petition is advertised, the question of applicability of section 8(1)(c) may be considered. There is no reason why any relief should be granted to the appellant in the Judgess Summons at this stage. We are unable to appreciate this submission. When a liquidator cannot be appointed in this winding up petition without the consent of the Central Government it is difficult to see what purpose would be served by advertising the petition for winding up. Construction of section 8 (1)(c) of the said Act is a technical issue where presence or absence of other creditors cannot make any difference. It would be futile to permit the respondents to advertise the petition for winding up when they require the consent of the Central Government before obtaining any final orders in the winding up petition. | 1[ds]In view of the clear distinction made in the Act between a textile undertaking and textile Company it is not possible to construe section 8 as applying only to a textile undertaking. In fact section 8 subsection (1) clearly sets out that so long as the management of a textile undertaking of a textile Company remains vested in the Central Government no proceedings for the winding up of the textile company or for the appointment of liquidator or receiver in respect thereof shall lie in any Court except with the consent of the Central Government. The section itself uses both the terms, textile undertakings and textile Company, with a clear reference to their definition. The provisions of section 8(1)(c) apply to the Textile Company itself in the present case, to thedo not see any reason why section 8(1)(c) should be construed in this fashion, The intention of section 8(1) (c) is clearly to prevent a textile Company whose undertaking is covered by the said Act from being wound up. There are other provisions also in the said Act which support this construction. For example under section 4(2) on the appointment of a custodian the management of the textile undertaking shall vest in such custodian and all persons in charge of the management shall cease to be in charge of such management. Under(8) of section 4 every person having possession, custody or control of any property forming part of the textile undertaking is also required to the deliver such property to the custodian. Therefore, every person who is in possession of such textile undertaking is required to hand over possession to the custodian. The Act therefore, clearly contemplates that textile undertakings which are covered by the Act should be in the possession of the custodian an not any other party, including Receiver or Liquidator.In the present case also the words winding up in section 8 of the present Act require to be given the widest amplitude, especially when section 8 (1)(c) clearly sets out that a liquidator cannot be appointed by the Court in a proceeding unless the proceeding is with the consent of the Central Government. Undoubtedly the language of section 8 (1) of the Sick Textile Undertakings (Taking Over of Management) Act, 1972 is somewhat different from the language of section 8 (1) (c) of the present Act. It is true that under section 8 (1) of the Sick Textile Undertakings (Taking Over of Management) Act, 1972 the section refers expressly to proceedings being continued. Such words are absent in the present section 8 (1)(c). But section 8 (1)(c) refers both to proceeding for winding up as also for the appointment of a liquidator or receiver. Therefore, in a pending winding up proceeding where the liquidator is required to be appointed after the coming into operation of the said Act the consent of the Central Government is necessary before the proceeding for the appointment of a liquidator can be continued.13. The words shall lie in section 8(1)(c) in this context do not necessarily refer only to a prospective proceeding. They mean shall be entertained. Under section 10 also it is provided, that no suit etc. shall lie against the Central Government or the custodian for anything which is in good faith done or intended to be done under the Act. It is submitted that the words shall lie in section 10 are clearly prospective. The same phrase is used in section 8. Hence in section 8 also the phrase must be construed as prospective. This contention must be rejected. It is the context of section 10 which makes the provisions of section 10 prospective because section 10 deals with proceedings against the Central Government or the custodian for anything done or intended to be done under the Act. Such Proceeding must necessarily be in respect of anything done after the commencement of the Act. The use of the phrase "shall lie" in section 10 is therefore not responsible for making the section prospective. The phrase in both sections 8 and 10 is intended to mean shall be entertained and nothing more. In our view looking to the provisions of section 8(1)(c) the section applies equally to a pending proceeding for winding up of the Company at the time when the Act came intoare unable to appreciate this submission. When a liquidator cannot be appointed in this winding up petition without the consent of the Central Government it is difficult to see what purpose would be served by advertising the petition for winding up. Construction of section 8 (1)(c) of the said Act is a technical issue where presence or absence of other creditors cannot make any difference. It would be futile to permit the respondents to advertise the petition for winding up when they require the consent of the Central Government before obtaining any final orders in the winding up petition. | 1 | 3,389 | 933 | ### Instruction:
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8(1)(c) refers to proceedings other than winding up proceedings under the Companies Act. We do not see any reason why section 8(1)(c) should be construed in this fashion, The intention of section 8(1) (c) is clearly to prevent a textile Company whose undertaking is covered by the said Act from being wound up. There are other provisions also in the said Act which support this construction. For example under section 4 sub-section (2) on the appointment of a custodian the management of the textile undertaking shall vest in such custodian and all persons in charge of the management shall cease to be in charge of such management. Under sub-section (8) of section 4 every person having possession, custody or control of any property forming part of the textile undertaking is also required to the deliver such property to the custodian. Therefore, every person who is in possession of such textile undertaking is required to hand over possession to the custodian. The Act therefore, clearly contemplates that textile undertakings which are covered by the Act should be in the possession of the custodian an not any other party, including Receiver or Liquidator.11. In the case of (Maharashtra State Textile Corporation Ltd. v. The Official Liquidator and others)2, reported in A.I.R. 1978 S.C. 476 the Supreme Court was required to construe the provisions of Sick Textile Undertakings (Taking Over of Management) Act of 1972. Under section 8(1) of that Act it was provided as follows : No proceeding for the winding up of a textile Company, within the meaning of this Act, shall lie in any Court or be continued whether by or under the supervision of any Court or voluntarily, except with the consent of the Central Government.Analysing this provision the Supreme Court held that the consent of the Central Government was necessary before pending proceedings were continued. In the course of its judgment the Supreme Court observed. In our opinion, the words winding up must be given the widest possible amplitude in order to serve the purpose of the Act namely, to control the proceedings of a textile Company which is in liquidation, by the Central Government. Whether the Company had been wound up or whether the proceedings for the winding up of the Company had been continuing would make no difference so far as the application of section 8 of the Management Act is concerned.12. In the present case also the words winding up in section 8 of the present Act require to be given the widest amplitude, especially when section 8 (1)(c) clearly sets out that a liquidator cannot be appointed by the Court in a proceeding unless the proceeding is with the consent of the Central Government. Undoubtedly the language of section 8 (1) of the Sick Textile Undertakings (Taking Over of Management) Act, 1972 is somewhat different from the language of section 8 (1) (c) of the present Act. It is true that under section 8 (1) of the Sick Textile Undertakings (Taking Over of Management) Act, 1972 the section refers expressly to proceedings being continued. Such words are absent in the present section 8 (1)(c). But section 8 (1)(c) refers both to proceeding for winding up as also for the appointment of a liquidator or receiver. Therefore, in a pending winding up proceeding where the liquidator is required to be appointed after the coming into operation of the said Act the consent of the Central Government is necessary before the proceeding for the appointment of a liquidator can be continued.13. The words shall lie in section 8(1)(c) in this context do not necessarily refer only to a prospective proceeding. They mean shall be entertained. Under section 10 also it is provided, that no suit etc. shall lie against the Central Government or the custodian for anything which is in good faith done or intended to be done under the Act. It is submitted that the words shall lie in section 10 are clearly prospective. The same phrase is used in section 8. Hence in section 8 also the phrase must be construed as prospective. This contention must be rejected. It is the context of section 10 which makes the provisions of section 10 prospective because section 10 deals with proceedings against the Central Government or the custodian for anything done or intended to be done under the Act. Such Proceeding must necessarily be in respect of anything done after the commencement of the Act. The use of the phrase "shall lie" in section 10 is therefore not responsible for making the section prospective. The phrase in both sections 8 and 10 is intended to mean shall be entertained and nothing more. In our view looking to the provisions of section 8(1)(c) the section applies equally to a pending proceeding for winding up of the Company at the time when the Act came into operation.14. It was finally urged by the respondents that the consent order is a self operative order. It provides for admission of the petition and its advertisement. There is no reason why the petition should not be advertised. It was also urged that at the time of the final hearing of the Company petition for winding up after the petition is advertised, the question of applicability of section 8(1)(c) may be considered. There is no reason why any relief should be granted to the appellant in the Judgess Summons at this stage. We are unable to appreciate this submission. When a liquidator cannot be appointed in this winding up petition without the consent of the Central Government it is difficult to see what purpose would be served by advertising the petition for winding up. Construction of section 8 (1)(c) of the said Act is a technical issue where presence or absence of other creditors cannot make any difference. It would be futile to permit the respondents to advertise the petition for winding up when they require the consent of the Central Government before obtaining any final orders in the winding up petition.
### Response:
1
### Explanation:
In view of the clear distinction made in the Act between a textile undertaking and textile Company it is not possible to construe section 8 as applying only to a textile undertaking. In fact section 8 subsection (1) clearly sets out that so long as the management of a textile undertaking of a textile Company remains vested in the Central Government no proceedings for the winding up of the textile company or for the appointment of liquidator or receiver in respect thereof shall lie in any Court except with the consent of the Central Government. The section itself uses both the terms, textile undertakings and textile Company, with a clear reference to their definition. The provisions of section 8(1)(c) apply to the Textile Company itself in the present case, to thedo not see any reason why section 8(1)(c) should be construed in this fashion, The intention of section 8(1) (c) is clearly to prevent a textile Company whose undertaking is covered by the said Act from being wound up. There are other provisions also in the said Act which support this construction. For example under section 4(2) on the appointment of a custodian the management of the textile undertaking shall vest in such custodian and all persons in charge of the management shall cease to be in charge of such management. Under(8) of section 4 every person having possession, custody or control of any property forming part of the textile undertaking is also required to the deliver such property to the custodian. Therefore, every person who is in possession of such textile undertaking is required to hand over possession to the custodian. The Act therefore, clearly contemplates that textile undertakings which are covered by the Act should be in the possession of the custodian an not any other party, including Receiver or Liquidator.In the present case also the words winding up in section 8 of the present Act require to be given the widest amplitude, especially when section 8 (1)(c) clearly sets out that a liquidator cannot be appointed by the Court in a proceeding unless the proceeding is with the consent of the Central Government. Undoubtedly the language of section 8 (1) of the Sick Textile Undertakings (Taking Over of Management) Act, 1972 is somewhat different from the language of section 8 (1) (c) of the present Act. It is true that under section 8 (1) of the Sick Textile Undertakings (Taking Over of Management) Act, 1972 the section refers expressly to proceedings being continued. Such words are absent in the present section 8 (1)(c). But section 8 (1)(c) refers both to proceeding for winding up as also for the appointment of a liquidator or receiver. Therefore, in a pending winding up proceeding where the liquidator is required to be appointed after the coming into operation of the said Act the consent of the Central Government is necessary before the proceeding for the appointment of a liquidator can be continued.13. The words shall lie in section 8(1)(c) in this context do not necessarily refer only to a prospective proceeding. They mean shall be entertained. Under section 10 also it is provided, that no suit etc. shall lie against the Central Government or the custodian for anything which is in good faith done or intended to be done under the Act. It is submitted that the words shall lie in section 10 are clearly prospective. The same phrase is used in section 8. Hence in section 8 also the phrase must be construed as prospective. This contention must be rejected. It is the context of section 10 which makes the provisions of section 10 prospective because section 10 deals with proceedings against the Central Government or the custodian for anything done or intended to be done under the Act. Such Proceeding must necessarily be in respect of anything done after the commencement of the Act. The use of the phrase "shall lie" in section 10 is therefore not responsible for making the section prospective. The phrase in both sections 8 and 10 is intended to mean shall be entertained and nothing more. In our view looking to the provisions of section 8(1)(c) the section applies equally to a pending proceeding for winding up of the Company at the time when the Act came intoare unable to appreciate this submission. When a liquidator cannot be appointed in this winding up petition without the consent of the Central Government it is difficult to see what purpose would be served by advertising the petition for winding up. Construction of section 8 (1)(c) of the said Act is a technical issue where presence or absence of other creditors cannot make any difference. It would be futile to permit the respondents to advertise the petition for winding up when they require the consent of the Central Government before obtaining any final orders in the winding up petition.
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The Commissioner Of Income-Tax, Andhrapradesh, Hyderabad Vs. K.Adinarayana Murty | 30, 1957 which was in pursuance of the first notice under S. 34 issued on March 22, 1957. It appears from the statement of the case that the Income-tax Officer was required to disclose the particular notice on which he made the assessment. The Income-tax Officer said that the assessment was based on the second notice. The Appellate Tribunal took the view that the return filed by the assessee on April 30, 1957 in response to the first notice was not a valid return and the Income-tax Officer was not bound to act upon it. Accordingly the Appellate Tribunal held that the assessment made under the second notice was legally valid. Since the Appellate Assistant Commissioner did not deal with the merits of the assessment the Appellate Tribunal remanded the appeal to the Appellate Assistant Commissioner for being dealt with on merits. At the instance of the assessee the Appellate Tribunal stated a case to the High Court on the following question of law:"Whether, on the facts and in the circumstances of the case, the assessment of pursuance of the notice issued under S. 34 on l2-2-1958 is a valid assessment?"The High Court held that the first notice dated March 22, 1957 was not invalid in law and consequently the issue of the second notice on February 12, 1958 was illegal and the assessment made in pursuance of that notice was also illegal. The High Court accordingly answered the question of law in favour of the assessee.3. The question presented for determination in this appeal is whether it was competent for the Income-tax Officer to issue the second notice dated February 12 1958 and continue proceedings thereon ignoring the return already filed by the assessee in pursuance of the first notice under the same section. It was pointed out by Mr. S. T. Desai on behalf of the assessee that both the notices under S. 34 of the Act were in identical terms and were addressed to the assessee in his name and the issue of the second notice made no difference in its contents to the knowledge of the assessee. It was also contended that the assessee filed his return in the status of Hindu Undivided Family in response to the first notice and the Income-tax Officer ought not to have ignored that return. We are unable to accept the argument put forward on behalf of the assessee as correct. The Income-tax Officer could not have validly acted on the return filed by the assessee in the status of Hindu Undivided Family and any assessment made by the Income-tax Officer on such return would have been invalid in law because the notice under S. 34 had been issued in the status of individual and sanction of the Commissioner for the issue of a notice under S. 34 was also obtained on that basis. We therefore consider that the Income-tax Officer was entitled to ignore the return filed by the assessee as non est in law. It is not disputed that the Income-tax Officer issued the first notice under S. 34 of the Act on March 22. 1957 to the assessee in the status of individual.The Appellate Tribunal has stated in para 3 of the statement of the case that the Income-tax Officer had taken the view that the correct status of the assessee was individual and in accordance with that view "a notice under S.34 was issued to the assessee as above for makinging an assessment in the status of individual. As there was some ambiguity in the statement of the case on this point, we referred to the original file of the income-tax proceedings and satisfied ourselves that the assertion of fact made in the statement of the case is correct, It appears that on, February 13, 1957 the Income-tax Officer had applied for the sanction of the Commissioner for instituting proceedings under S. 34 (1) (a) of the Act against the assessee to make an assessment in the status of an individual with regard to the procurement agency business. Sanction of the Commissioner was given to the proposal of the Income-tax Officer and thereafter the first notice under S. 34 of the Act was issued on March 22, 1957. In this state of facts we are of opinion that the proceeding taken under the first notice under S. 34 of the Act was invalid and ultra vires. The correct status of the assessee was that of Hindu Undivided Family as was held by the Appellate Assistant Commissioner in the assessment for the year 1954-55 and since the first notice under S. 34 was issued to the assessee as an individual for making assessment in that status it is manifest that the proceedings taken under that notice were illegal and without jurisdiction. Under the scheme of the Income-tax Act the Individual and the Hindu Undivided Family are treated as separate units of assessment and if a notice under S. 34 of the Act is wrongly issued to the assessee in the status of an individual and not in the correct status of Hindu Undivided Family the notice is illegal and all proceedings taken under that notice are ultra vires and without jurisdiction. It was contended by Mr. S. T. Desai on behalf of the assessee that the return was filed by the assessee in response to the first notice in the character of Hindu Undivided Family. But the submission of the return by the assessee will not make any difference to the character of the proceedings in pursuance of the first notice which must be held to be illegal and ultra vires for the reasons already stated. We are therefore of the opinion that the Income-tax Officer was legally justified in ignoring the first notice issued under S. 34 of the Act and the return filed by the assessee in response to that notice and consequently the assessment made by the Income-tax Officer in pursuance of the second notice issued on February 12, 1958 was a valid assessment. | 1[ds]We are unable to accept the argument put forward on behalf of the assessee as correct. The Income-tax Officer could not have validly acted on the return filed by the assessee in the status of Hindu Undivided Family and any assessment made by the Income-tax Officer on such return would have been invalid in law because the notice under S. 34 had been issued in the status of individual and sanction of the Commissioner for the issue of a notice under S. 34 was also obtained on that basis. We therefore consider that the Income-tax Officer was entitled to ignore the return filed by the assessee as non est in law. It is not disputed that the Income-tax Officer issued the first notice under S. 34 of the Act on March 22. 1957 to the assessee in the status ofAppellate Tribunal has stated in para 3 of the statement of the case that the Income-tax Officer had taken the view that the correct status of the assessee was individual and in accordance with that view "a notice under S.34 was issued to the assessee as above for makinging an assessment in the status of individual. As there was some ambiguity in the statement of the case on this point, we referred to the original file of the income-tax proceedings and satisfied ourselves that the assertion of fact made in the statement of the case is correct, It appears that on, February 13, 1957 the Income-tax Officer had applied for the sanction of the Commissioner for instituting proceedings under S. 34 (1) (a) of the Act against the assessee to make an assessment in the status of an individual with regard to the procurement agency business. Sanction of the Commissioner was given to the proposal of the Income-tax Officer and thereafter the first notice under S. 34 of the Act was issued on March 22, 1957. In this state of facts we are of opinion that the proceeding taken under the first notice under S. 34 of the Act was invalid and ultra vires. The correct status of the assessee was that of Hindu Undivided Family as was held by the Appellate Assistant Commissioner in the assessment for the year 1954-55 and since the first notice under S. 34 was issued to the assessee as an individual for making assessment in that status it is manifest that the proceedings taken under that notice were illegal and without jurisdiction. Under the scheme of the Income-tax Act the Individual and the Hindu Undivided Family are treated as separate units of assessment and if a notice under S. 34 of the Act is wrongly issued to the assessee in the status of an individual and not in the correct status of Hindu Undivided Family the notice is illegal and all proceedings taken under that notice are ultra vires and withoutthe submission of the return by the assessee will not make any difference to the character of the proceedings in pursuance of the first notice which must be held to be illegal and ultra vires for the reasons already stated. We are therefore of the opinion that the Income-tax Officer was legally justified in ignoring the first notice issued under S. 34 of the Act and the return filed by the assessee in response to that notice and consequently the assessment made by the Income-tax Officer in pursuance of the second notice issued on February 12, 1958 was a valid assessment. | 1 | 1,655 | 602 | ### 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:
30, 1957 which was in pursuance of the first notice under S. 34 issued on March 22, 1957. It appears from the statement of the case that the Income-tax Officer was required to disclose the particular notice on which he made the assessment. The Income-tax Officer said that the assessment was based on the second notice. The Appellate Tribunal took the view that the return filed by the assessee on April 30, 1957 in response to the first notice was not a valid return and the Income-tax Officer was not bound to act upon it. Accordingly the Appellate Tribunal held that the assessment made under the second notice was legally valid. Since the Appellate Assistant Commissioner did not deal with the merits of the assessment the Appellate Tribunal remanded the appeal to the Appellate Assistant Commissioner for being dealt with on merits. At the instance of the assessee the Appellate Tribunal stated a case to the High Court on the following question of law:"Whether, on the facts and in the circumstances of the case, the assessment of pursuance of the notice issued under S. 34 on l2-2-1958 is a valid assessment?"The High Court held that the first notice dated March 22, 1957 was not invalid in law and consequently the issue of the second notice on February 12, 1958 was illegal and the assessment made in pursuance of that notice was also illegal. The High Court accordingly answered the question of law in favour of the assessee.3. The question presented for determination in this appeal is whether it was competent for the Income-tax Officer to issue the second notice dated February 12 1958 and continue proceedings thereon ignoring the return already filed by the assessee in pursuance of the first notice under the same section. It was pointed out by Mr. S. T. Desai on behalf of the assessee that both the notices under S. 34 of the Act were in identical terms and were addressed to the assessee in his name and the issue of the second notice made no difference in its contents to the knowledge of the assessee. It was also contended that the assessee filed his return in the status of Hindu Undivided Family in response to the first notice and the Income-tax Officer ought not to have ignored that return. We are unable to accept the argument put forward on behalf of the assessee as correct. The Income-tax Officer could not have validly acted on the return filed by the assessee in the status of Hindu Undivided Family and any assessment made by the Income-tax Officer on such return would have been invalid in law because the notice under S. 34 had been issued in the status of individual and sanction of the Commissioner for the issue of a notice under S. 34 was also obtained on that basis. We therefore consider that the Income-tax Officer was entitled to ignore the return filed by the assessee as non est in law. It is not disputed that the Income-tax Officer issued the first notice under S. 34 of the Act on March 22. 1957 to the assessee in the status of individual.The Appellate Tribunal has stated in para 3 of the statement of the case that the Income-tax Officer had taken the view that the correct status of the assessee was individual and in accordance with that view "a notice under S.34 was issued to the assessee as above for makinging an assessment in the status of individual. As there was some ambiguity in the statement of the case on this point, we referred to the original file of the income-tax proceedings and satisfied ourselves that the assertion of fact made in the statement of the case is correct, It appears that on, February 13, 1957 the Income-tax Officer had applied for the sanction of the Commissioner for instituting proceedings under S. 34 (1) (a) of the Act against the assessee to make an assessment in the status of an individual with regard to the procurement agency business. Sanction of the Commissioner was given to the proposal of the Income-tax Officer and thereafter the first notice under S. 34 of the Act was issued on March 22, 1957. In this state of facts we are of opinion that the proceeding taken under the first notice under S. 34 of the Act was invalid and ultra vires. The correct status of the assessee was that of Hindu Undivided Family as was held by the Appellate Assistant Commissioner in the assessment for the year 1954-55 and since the first notice under S. 34 was issued to the assessee as an individual for making assessment in that status it is manifest that the proceedings taken under that notice were illegal and without jurisdiction. Under the scheme of the Income-tax Act the Individual and the Hindu Undivided Family are treated as separate units of assessment and if a notice under S. 34 of the Act is wrongly issued to the assessee in the status of an individual and not in the correct status of Hindu Undivided Family the notice is illegal and all proceedings taken under that notice are ultra vires and without jurisdiction. It was contended by Mr. S. T. Desai on behalf of the assessee that the return was filed by the assessee in response to the first notice in the character of Hindu Undivided Family. But the submission of the return by the assessee will not make any difference to the character of the proceedings in pursuance of the first notice which must be held to be illegal and ultra vires for the reasons already stated. We are therefore of the opinion that the Income-tax Officer was legally justified in ignoring the first notice issued under S. 34 of the Act and the return filed by the assessee in response to that notice and consequently the assessment made by the Income-tax Officer in pursuance of the second notice issued on February 12, 1958 was a valid assessment.
### Response:
1
### Explanation:
We are unable to accept the argument put forward on behalf of the assessee as correct. The Income-tax Officer could not have validly acted on the return filed by the assessee in the status of Hindu Undivided Family and any assessment made by the Income-tax Officer on such return would have been invalid in law because the notice under S. 34 had been issued in the status of individual and sanction of the Commissioner for the issue of a notice under S. 34 was also obtained on that basis. We therefore consider that the Income-tax Officer was entitled to ignore the return filed by the assessee as non est in law. It is not disputed that the Income-tax Officer issued the first notice under S. 34 of the Act on March 22. 1957 to the assessee in the status ofAppellate Tribunal has stated in para 3 of the statement of the case that the Income-tax Officer had taken the view that the correct status of the assessee was individual and in accordance with that view "a notice under S.34 was issued to the assessee as above for makinging an assessment in the status of individual. As there was some ambiguity in the statement of the case on this point, we referred to the original file of the income-tax proceedings and satisfied ourselves that the assertion of fact made in the statement of the case is correct, It appears that on, February 13, 1957 the Income-tax Officer had applied for the sanction of the Commissioner for instituting proceedings under S. 34 (1) (a) of the Act against the assessee to make an assessment in the status of an individual with regard to the procurement agency business. Sanction of the Commissioner was given to the proposal of the Income-tax Officer and thereafter the first notice under S. 34 of the Act was issued on March 22, 1957. In this state of facts we are of opinion that the proceeding taken under the first notice under S. 34 of the Act was invalid and ultra vires. The correct status of the assessee was that of Hindu Undivided Family as was held by the Appellate Assistant Commissioner in the assessment for the year 1954-55 and since the first notice under S. 34 was issued to the assessee as an individual for making assessment in that status it is manifest that the proceedings taken under that notice were illegal and without jurisdiction. Under the scheme of the Income-tax Act the Individual and the Hindu Undivided Family are treated as separate units of assessment and if a notice under S. 34 of the Act is wrongly issued to the assessee in the status of an individual and not in the correct status of Hindu Undivided Family the notice is illegal and all proceedings taken under that notice are ultra vires and withoutthe submission of the return by the assessee will not make any difference to the character of the proceedings in pursuance of the first notice which must be held to be illegal and ultra vires for the reasons already stated. We are therefore of the opinion that the Income-tax Officer was legally justified in ignoring the first notice issued under S. 34 of the Act and the return filed by the assessee in response to that notice and consequently the assessment made by the Income-tax Officer in pursuance of the second notice issued on February 12, 1958 was a valid assessment.
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Ratilal Chhaganlal Vs. Dhari District Municipality | Hegde, J. 1. The material facts in this appeal, by special leave lie within a narrow compass. The appellant was working as Officiating Secretary of the respondent Municipality in December, 1951. It is said that when the cash balance was checked on December 24, 1951, It was short by Rs. 250/- On that ground he was dismissed from service by the President of the Municipality. On the question whether the appellant was guilty of misconduct, there was difference of opinion between the President and the Vice - President as well as between the President and the Municipality. Later on the Municipality was superseded by the Government and an administrator appointed. The administrator after looking into the revelant papers came to the conclusion that the appellant should be dismissed from service. He accordingly passed the order dismissing him on July 25, 1952. The appellants appeal to the Director of Local Authorities was rejected on January 24, l953. Thereafter he instituted a suit seeking a declaration that his dismissal was illegal and invalid and therefore he continues to be in service. The trial Court came to the conclusion that the appellants dismissal was illegal and void but it dismissed the suit on the ground that it was barred by limitation. In appeal the first appellate Court differed from the trial Court on the question of limitation but it held that though the appellants dismissal was wrongful, the same was not illegal and void. On that ground it affirmed the decree of the trial Court. In second appeal the High Court concurred with the conclusions reached by the first appellate Court. 2. All the Courts below have concurrently come to the conclusion that the appellant had not been given proper opportunity to establish his innocence. They came to the conclusion that no charges had been served on the appellant nor any proper enquiry held. Hence, there was a breach of principles of natural justice but both the first appellate Court and the High Court rejected the plaintiffs prayer on the ground that his dismissal was merely wrongful and not illegal; hence he could claim only damages and not a declaration that he continues to be in service. The respondent-Municipality is a B class Municipality. According to Rule 6 of the Rules framed by that Municipality in matters of appointment, punishment, dismissal, fine, reduction in rank suspension from work leave, pension and contribution to Provident Fund, the relevant rules applicable to the State servants prevailing from time to time were to apply to the servants of the Municipality. In that way Rule 55 of the Bombay Civil Services Conduct, Discipline and Appeal Rules governed the case of the plaintiff. That rule provides inter alia that no order of dismissal, removal or reduction shall be passed on a member of the service unless he has been informed in writing all the grounds on which it is proposed to take action against him and he has been afforded an adequate opportunity of defending himself. It further provides the manner in which the enquiry has to be held against any such person. On the facts found by the Courts below, clearly there was a contravention of Rule 6 read with Rule 55 of the Bombay Civil Services Conduct, Discipline and Appeal Rules. But both the first appellate Court and the High Court have come to the conclusion that Rule 6 is only directory and not mandatory and hence its contravention merely makes the order of dismissal wrongful and not illegal. In coming to that conclusion they have followed the earlier decisions of the Gujarat High Court as well as the decision of the Bombay High Court in Broach Municipality v. Bhadriklal Ambalal Patel, (1951 ) 53 Bom LR 282. The rule that came up for consideration in Ambalal Patels case. (1951) 53 Bom LR 282 (supra) is similar to the one with which we are concerned in this appeal. The interpretation placed by the Bombay High Court on that Rule as far back as in 1950 appears to have been consistently followed by the Bombay High Court and later on by the Gujarat High Court as could be gathered from the judgment of the High Court. Herein we are concerned with an interpretation of a rule under a local law. The concerned High Courts have consistently taken the view that the procedure prescribed under that rule is directory and not mandatory. It will not be proper for this Court to disturb the settled law. In this view, we do not think that we should interfere with the judgment of the High Court. | 0[ds]2. All the Courts below have concurrently come to the conclusion that the appellant had not been given proper opportunity to establish his innocence. They came to the conclusion that no charges had been served on the appellant nor any proper enquiry held. Hence, there was a breach of principles of natural justice but both the first appellate Court and the High Court rejected the plaintiffs prayer on the ground that his dismissal was merely wrongful and not illegal; hence he could claim only damages and not a declaration that he continues to be in serviceBut both the first appellate Court and the High Court have come to the conclusion that Rule 6 is only directory and not mandatory and hence its contravention merely makes the order of dismissal wrongful and not illegal. In coming to that conclusion they have followed the earlier decisions of the Gujarat High Court as well as the decision of the Bombay High Court in Broach Municipality v. Bhadriklal Ambalal Patel, (1951 ) 53 Bom LR 282. The rule that came up for consideration in Ambalal Patels case. (1951) 53 Bom LR 282 (supra) is similar to the one with which we are concerned in this appeal. The interpretation placed by the Bombay High Court on that Rule as far back as in 1950 appears to have been consistently followed by the Bombay High Court and later on by the Gujarat High Court as could be gathered from the judgment of the High Court. Herein we are concerned with an interpretation of a rule under a local law. The concerned High Courts have consistently taken the view that the procedure prescribed under that rule is directory and not mandatory. It will not be proper for this Court to disturb the settled law. In this view, we do not think that we should interfere with the judgment of the High Court. | 0 | 828 | 340 | ### 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:
Hegde, J. 1. The material facts in this appeal, by special leave lie within a narrow compass. The appellant was working as Officiating Secretary of the respondent Municipality in December, 1951. It is said that when the cash balance was checked on December 24, 1951, It was short by Rs. 250/- On that ground he was dismissed from service by the President of the Municipality. On the question whether the appellant was guilty of misconduct, there was difference of opinion between the President and the Vice - President as well as between the President and the Municipality. Later on the Municipality was superseded by the Government and an administrator appointed. The administrator after looking into the revelant papers came to the conclusion that the appellant should be dismissed from service. He accordingly passed the order dismissing him on July 25, 1952. The appellants appeal to the Director of Local Authorities was rejected on January 24, l953. Thereafter he instituted a suit seeking a declaration that his dismissal was illegal and invalid and therefore he continues to be in service. The trial Court came to the conclusion that the appellants dismissal was illegal and void but it dismissed the suit on the ground that it was barred by limitation. In appeal the first appellate Court differed from the trial Court on the question of limitation but it held that though the appellants dismissal was wrongful, the same was not illegal and void. On that ground it affirmed the decree of the trial Court. In second appeal the High Court concurred with the conclusions reached by the first appellate Court. 2. All the Courts below have concurrently come to the conclusion that the appellant had not been given proper opportunity to establish his innocence. They came to the conclusion that no charges had been served on the appellant nor any proper enquiry held. Hence, there was a breach of principles of natural justice but both the first appellate Court and the High Court rejected the plaintiffs prayer on the ground that his dismissal was merely wrongful and not illegal; hence he could claim only damages and not a declaration that he continues to be in service. The respondent-Municipality is a B class Municipality. According to Rule 6 of the Rules framed by that Municipality in matters of appointment, punishment, dismissal, fine, reduction in rank suspension from work leave, pension and contribution to Provident Fund, the relevant rules applicable to the State servants prevailing from time to time were to apply to the servants of the Municipality. In that way Rule 55 of the Bombay Civil Services Conduct, Discipline and Appeal Rules governed the case of the plaintiff. That rule provides inter alia that no order of dismissal, removal or reduction shall be passed on a member of the service unless he has been informed in writing all the grounds on which it is proposed to take action against him and he has been afforded an adequate opportunity of defending himself. It further provides the manner in which the enquiry has to be held against any such person. On the facts found by the Courts below, clearly there was a contravention of Rule 6 read with Rule 55 of the Bombay Civil Services Conduct, Discipline and Appeal Rules. But both the first appellate Court and the High Court have come to the conclusion that Rule 6 is only directory and not mandatory and hence its contravention merely makes the order of dismissal wrongful and not illegal. In coming to that conclusion they have followed the earlier decisions of the Gujarat High Court as well as the decision of the Bombay High Court in Broach Municipality v. Bhadriklal Ambalal Patel, (1951 ) 53 Bom LR 282. The rule that came up for consideration in Ambalal Patels case. (1951) 53 Bom LR 282 (supra) is similar to the one with which we are concerned in this appeal. The interpretation placed by the Bombay High Court on that Rule as far back as in 1950 appears to have been consistently followed by the Bombay High Court and later on by the Gujarat High Court as could be gathered from the judgment of the High Court. Herein we are concerned with an interpretation of a rule under a local law. The concerned High Courts have consistently taken the view that the procedure prescribed under that rule is directory and not mandatory. It will not be proper for this Court to disturb the settled law. In this view, we do not think that we should interfere with the judgment of the High Court.
### Response:
0
### Explanation:
2. All the Courts below have concurrently come to the conclusion that the appellant had not been given proper opportunity to establish his innocence. They came to the conclusion that no charges had been served on the appellant nor any proper enquiry held. Hence, there was a breach of principles of natural justice but both the first appellate Court and the High Court rejected the plaintiffs prayer on the ground that his dismissal was merely wrongful and not illegal; hence he could claim only damages and not a declaration that he continues to be in serviceBut both the first appellate Court and the High Court have come to the conclusion that Rule 6 is only directory and not mandatory and hence its contravention merely makes the order of dismissal wrongful and not illegal. In coming to that conclusion they have followed the earlier decisions of the Gujarat High Court as well as the decision of the Bombay High Court in Broach Municipality v. Bhadriklal Ambalal Patel, (1951 ) 53 Bom LR 282. The rule that came up for consideration in Ambalal Patels case. (1951) 53 Bom LR 282 (supra) is similar to the one with which we are concerned in this appeal. The interpretation placed by the Bombay High Court on that Rule as far back as in 1950 appears to have been consistently followed by the Bombay High Court and later on by the Gujarat High Court as could be gathered from the judgment of the High Court. Herein we are concerned with an interpretation of a rule under a local law. The concerned High Courts have consistently taken the view that the procedure prescribed under that rule is directory and not mandatory. It will not be proper for this Court to disturb the settled law. In this view, we do not think that we should interfere with the judgment of the High Court.
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THE KARNATAKA STATE SEEDS DEVELOPMENT CORPORATION LIMITED Vs. H. L. KAVERI & ORS. | experience certificate of 3 years even on the date when the advertisement came to be published dated 11 th November, 2013, she at least should not be deprived from fair consideration for such technical reasons against a woman who is member of Scheduled Caste category and for whom the post was reserved, in the given circumstances, denial from consideration for appointment after her suitability being adjudged has certainly caused a great prejudice to her and this what the Division Bench has observed and that needs no interference by this Court. 9. We have heard learned counsel for the parties and perused the material available on record with their assistance. 10. The appellant-Corporation notified the backlog vacancies in a daily newspaper vide its advertisement dated 11 th November, 2013 inviting applications from the eligible candidates to fill up the vacancies of Senior Assistant/Junior Assistant including other posts. The academic qualification and work experience which was required for the purpose of Senior Assistant/Junior Assistant is indicated hereunder: - Senior Assistant : Qualification: 1) Degree of recognized University 2) Preference to B. Com graduate with Accountancy as a subject. 3) Computer knowledge with MS Office and Tally or any other accounting package. Experience : Must have worked in a similar capacity for three years in a reputed company. Junior Assistant : Qualification : 1) Degree of recognized University. 2) Preference to B. Com graduate with Accountancy as a subject. 3) Computer knowledge with MS Office and Tally or any other accounting package. Experience : Must have worked in a similar capacity for TWO years in a reputed Company. 11. Under its advertisement dated 11 th November 2013, it was specifically indicated that separate application should be submitted for each post accompanied with various requirements including qualification, experience, etc. and incomplete application, if any, is liable for rejection without assigning any reason. The 1 st respondent applied for the post of Senior Assistant/Junior Assistant vide application dated 29 th November, 2013. After scrutiny of the applications, the select list of backlog vacancies was published on 16 th January, 2015 and it reveals from the record that impleaded 3 rd respondent in the writ petition (Smt. Priyanka A. Chanchalkar) was provisionally selected as Senior Assistant securing 64.65% marks. At the same time, the 1 st respondent secured 65.43% marks but since the 1 st respondent failed to submit experience certificate along with the application form, her application at the stage of scrutiny itself was rejected. 12. The Corporation in IA No. 3457 of 2020 has indicated that total 31 applications for the post of Senior Assistant were rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicant for Senior Assistant against the single post of female (Scheduled Caste) which remain unfilled because of the orders of the Court. At the same time, the Corporation rejected 106 number of applications for the post of Junior Assistant for not enclosing the documents required including self-attested copies of experience certificate/caste certificate/computer tally-certificate/graduation certififcate/birth certificate, etc. 13. It remains indisputed as recorded by the learned Single Judge of the High Court in the order after perusal of the original records of which reference has been made that the 1 st respondent had not enclosed her experience certificate along with the application and her statement on oath was found to be factually incorrect and the rejection of her application was indeed in terms of the advertisement dated 11 th November, 2013 for which the Corporation was not required to assign any reasons which although was disclosed before the Court and noticed by the learned Single Judge in its judgment. 14. In the given circumstances, we do not find any error being committed by the Corporation in its decision making process while rejecting the application of the 1 st respondent for non-fulfilment of the necessary experience certificate which was to be enclosed along with the application as required in terms of the advertisement dated 11 th November, 2013. 15. That apart, the post of Senior Assistant which remained vacant, as informed to this Court, even if it is considered that there is a reasonable justification for which the certificate could not have been enclosed by the 1 st respondent along with the application, there are several other candidates who have obtained higher percentage in qualifying examination compared to the 1 st respondent whose applications have been rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicants for the post of Senior Assistant against the single post of women(SC) category, at least no indefensible right in the present circumstances, could have been claimed by the 1 st respondent for her inclusion in the select list for appointment to the post of Senior Assistant. At the same time, for the post of Junior Assistant, 106 applications of the applicants were rejected by the Corporation for non-enclosing self-attested copies including that of the experience certificate and this fact has come on record that out of 10 vacancies advertised, only one post for physically handicapped remain vacant as the suitable candidate was not available, which indeed could not be converted to open/other reserved categories. 16. The Division Bench of the High Court has relied upon the judgment in Seema Kumar Sharma case(supra) in extending relief to the 1 st respondent which, in our view, is of no assistance and, in our view, the Division Bench has committed a manifest error by taking note of the experience certificate to support her claim for appointment without even indicating the post for which her claim could be considered in terms of the advertisement dated 11 th November, 2013. 17. We would further like to observe that merely because the 1 st respondent had approached the High Court by filing of a writ petition, that would not be sufficient to exercise jurisdiction under Article 226 of the Constitution in over-reaching the rights of the candidates who were otherwise eligible for appointment. | 1[ds]11. Under its advertisement dated 11 th November 2013, it was specifically indicated that separate application should be submitted for each post accompanied with various requirements including qualification, experience, etc. and incomplete application, if any, is liable for rejection without assigning any reason. The 1 st respondent applied for the post of Senior Assistant/Junior Assistant vide application dated 29 th November, 2013. After scrutiny of the applications, the select list of backlog vacancies was published on 16 th January, 2015 and it reveals from the record that impleaded 3 rd respondent in the writ petition (Smt. Priyanka A. Chanchalkar) was provisionally selected as Senior Assistant securing 64.65% marks. At the same time, the 1 st respondent secured 65.43% marks but since the 1 st respondent failed to submit experience certificate along with the application form, her application at the stage of scrutiny itself was rejected12. The Corporation in IA No. 3457 of 2020 has indicated that total 31 applications for the post of Senior Assistant were rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicant for Senior Assistant against the single post of female (Scheduled Caste) which remain unfilled because of the orders of the Court. At the same time, the Corporation rejected 106 number of applications for the post of Junior Assistant for not enclosing the documents required including self-attested copies of experience certificate/caste certificate/computer tally-certificate/graduation certififcate/birth certificate, etc13. It remains indisputed as recorded by the learned Single Judge of the High Court in the order after perusal of the original records of which reference has been made that the 1 st respondent had not enclosed her experience certificate along with the application and her statement on oath was found to be factually incorrect and the rejection of her application was indeed in terms of the advertisement dated 11 th November, 2013 for which the Corporation was not required to assign any reasons which although was disclosed before the Court and noticed by the learned Single Judge in its judgment14. In the given circumstances, we do not find any error being committed by the Corporation in its decision making process while rejecting the application of the 1 st respondent for non-fulfilment of the necessary experience certificate which was to be enclosed along with the application as required in terms of the advertisement dated 11 th November, 201315. That apart, the post of Senior Assistant which remained vacant, as informed to this Court, even if it is considered that there is a reasonable justification for which the certificate could not have been enclosed by the 1 st respondent along with the application, there are several other candidates who have obtained higher percentage in qualifying examination compared to the 1 st respondent whose applications have been rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicants for the post of Senior Assistant against the single post of women(SC) category, at least no indefensible right in the present circumstances, could have been claimed by the 1 st respondent for her inclusion in the select list for appointment to the post of Senior Assistant. At the same time, for the post of Junior Assistant, 106 applications of the applicants were rejected by the Corporation for non-enclosing self-attested copies including that of the experience certificate and this fact has come on record that out of 10 vacancies advertised, only one post for physically handicapped remain vacant as the suitable candidate was not available, which indeed could not be converted to open/other reserved categories16. The Division Bench of the High Court has relied upon the judgment in Seema Kumar Sharma case(supra) in extending relief to the 1 st respondent which, in our view, is of no assistance and, in our view, the Division Bench has committed a manifest error by taking note of the experience certificate to support her claim for appointment without even indicating the post for which her claim could be considered in terms of the advertisement dated 11 th November, 201317. We would further like to observe that merely because the 1 st respondent had approached the High Court by filing of a writ petition, that would not be sufficient to exercise jurisdiction under Article 226 of the Constitution in over-reaching the rights of the candidates who were otherwise eligible for appointment. | 1 | 2,344 | 792 | ### 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:
experience certificate of 3 years even on the date when the advertisement came to be published dated 11 th November, 2013, she at least should not be deprived from fair consideration for such technical reasons against a woman who is member of Scheduled Caste category and for whom the post was reserved, in the given circumstances, denial from consideration for appointment after her suitability being adjudged has certainly caused a great prejudice to her and this what the Division Bench has observed and that needs no interference by this Court. 9. We have heard learned counsel for the parties and perused the material available on record with their assistance. 10. The appellant-Corporation notified the backlog vacancies in a daily newspaper vide its advertisement dated 11 th November, 2013 inviting applications from the eligible candidates to fill up the vacancies of Senior Assistant/Junior Assistant including other posts. The academic qualification and work experience which was required for the purpose of Senior Assistant/Junior Assistant is indicated hereunder: - Senior Assistant : Qualification: 1) Degree of recognized University 2) Preference to B. Com graduate with Accountancy as a subject. 3) Computer knowledge with MS Office and Tally or any other accounting package. Experience : Must have worked in a similar capacity for three years in a reputed company. Junior Assistant : Qualification : 1) Degree of recognized University. 2) Preference to B. Com graduate with Accountancy as a subject. 3) Computer knowledge with MS Office and Tally or any other accounting package. Experience : Must have worked in a similar capacity for TWO years in a reputed Company. 11. Under its advertisement dated 11 th November 2013, it was specifically indicated that separate application should be submitted for each post accompanied with various requirements including qualification, experience, etc. and incomplete application, if any, is liable for rejection without assigning any reason. The 1 st respondent applied for the post of Senior Assistant/Junior Assistant vide application dated 29 th November, 2013. After scrutiny of the applications, the select list of backlog vacancies was published on 16 th January, 2015 and it reveals from the record that impleaded 3 rd respondent in the writ petition (Smt. Priyanka A. Chanchalkar) was provisionally selected as Senior Assistant securing 64.65% marks. At the same time, the 1 st respondent secured 65.43% marks but since the 1 st respondent failed to submit experience certificate along with the application form, her application at the stage of scrutiny itself was rejected. 12. The Corporation in IA No. 3457 of 2020 has indicated that total 31 applications for the post of Senior Assistant were rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicant for Senior Assistant against the single post of female (Scheduled Caste) which remain unfilled because of the orders of the Court. At the same time, the Corporation rejected 106 number of applications for the post of Junior Assistant for not enclosing the documents required including self-attested copies of experience certificate/caste certificate/computer tally-certificate/graduation certififcate/birth certificate, etc. 13. It remains indisputed as recorded by the learned Single Judge of the High Court in the order after perusal of the original records of which reference has been made that the 1 st respondent had not enclosed her experience certificate along with the application and her statement on oath was found to be factually incorrect and the rejection of her application was indeed in terms of the advertisement dated 11 th November, 2013 for which the Corporation was not required to assign any reasons which although was disclosed before the Court and noticed by the learned Single Judge in its judgment. 14. In the given circumstances, we do not find any error being committed by the Corporation in its decision making process while rejecting the application of the 1 st respondent for non-fulfilment of the necessary experience certificate which was to be enclosed along with the application as required in terms of the advertisement dated 11 th November, 2013. 15. That apart, the post of Senior Assistant which remained vacant, as informed to this Court, even if it is considered that there is a reasonable justification for which the certificate could not have been enclosed by the 1 st respondent along with the application, there are several other candidates who have obtained higher percentage in qualifying examination compared to the 1 st respondent whose applications have been rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicants for the post of Senior Assistant against the single post of women(SC) category, at least no indefensible right in the present circumstances, could have been claimed by the 1 st respondent for her inclusion in the select list for appointment to the post of Senior Assistant. At the same time, for the post of Junior Assistant, 106 applications of the applicants were rejected by the Corporation for non-enclosing self-attested copies including that of the experience certificate and this fact has come on record that out of 10 vacancies advertised, only one post for physically handicapped remain vacant as the suitable candidate was not available, which indeed could not be converted to open/other reserved categories. 16. The Division Bench of the High Court has relied upon the judgment in Seema Kumar Sharma case(supra) in extending relief to the 1 st respondent which, in our view, is of no assistance and, in our view, the Division Bench has committed a manifest error by taking note of the experience certificate to support her claim for appointment without even indicating the post for which her claim could be considered in terms of the advertisement dated 11 th November, 2013. 17. We would further like to observe that merely because the 1 st respondent had approached the High Court by filing of a writ petition, that would not be sufficient to exercise jurisdiction under Article 226 of the Constitution in over-reaching the rights of the candidates who were otherwise eligible for appointment.
### Response:
1
### Explanation:
11. Under its advertisement dated 11 th November 2013, it was specifically indicated that separate application should be submitted for each post accompanied with various requirements including qualification, experience, etc. and incomplete application, if any, is liable for rejection without assigning any reason. The 1 st respondent applied for the post of Senior Assistant/Junior Assistant vide application dated 29 th November, 2013. After scrutiny of the applications, the select list of backlog vacancies was published on 16 th January, 2015 and it reveals from the record that impleaded 3 rd respondent in the writ petition (Smt. Priyanka A. Chanchalkar) was provisionally selected as Senior Assistant securing 64.65% marks. At the same time, the 1 st respondent secured 65.43% marks but since the 1 st respondent failed to submit experience certificate along with the application form, her application at the stage of scrutiny itself was rejected12. The Corporation in IA No. 3457 of 2020 has indicated that total 31 applications for the post of Senior Assistant were rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicant for Senior Assistant against the single post of female (Scheduled Caste) which remain unfilled because of the orders of the Court. At the same time, the Corporation rejected 106 number of applications for the post of Junior Assistant for not enclosing the documents required including self-attested copies of experience certificate/caste certificate/computer tally-certificate/graduation certififcate/birth certificate, etc13. It remains indisputed as recorded by the learned Single Judge of the High Court in the order after perusal of the original records of which reference has been made that the 1 st respondent had not enclosed her experience certificate along with the application and her statement on oath was found to be factually incorrect and the rejection of her application was indeed in terms of the advertisement dated 11 th November, 2013 for which the Corporation was not required to assign any reasons which although was disclosed before the Court and noticed by the learned Single Judge in its judgment14. In the given circumstances, we do not find any error being committed by the Corporation in its decision making process while rejecting the application of the 1 st respondent for non-fulfilment of the necessary experience certificate which was to be enclosed along with the application as required in terms of the advertisement dated 11 th November, 201315. That apart, the post of Senior Assistant which remained vacant, as informed to this Court, even if it is considered that there is a reasonable justification for which the certificate could not have been enclosed by the 1 st respondent along with the application, there are several other candidates who have obtained higher percentage in qualifying examination compared to the 1 st respondent whose applications have been rejected in view of not enclosing of self-attested documents and there are 7 women candidates listed as valid applicants for the post of Senior Assistant against the single post of women(SC) category, at least no indefensible right in the present circumstances, could have been claimed by the 1 st respondent for her inclusion in the select list for appointment to the post of Senior Assistant. At the same time, for the post of Junior Assistant, 106 applications of the applicants were rejected by the Corporation for non-enclosing self-attested copies including that of the experience certificate and this fact has come on record that out of 10 vacancies advertised, only one post for physically handicapped remain vacant as the suitable candidate was not available, which indeed could not be converted to open/other reserved categories16. The Division Bench of the High Court has relied upon the judgment in Seema Kumar Sharma case(supra) in extending relief to the 1 st respondent which, in our view, is of no assistance and, in our view, the Division Bench has committed a manifest error by taking note of the experience certificate to support her claim for appointment without even indicating the post for which her claim could be considered in terms of the advertisement dated 11 th November, 201317. We would further like to observe that merely because the 1 st respondent had approached the High Court by filing of a writ petition, that would not be sufficient to exercise jurisdiction under Article 226 of the Constitution in over-reaching the rights of the candidates who were otherwise eligible for appointment.
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Ramjas Foundation Vs. Union Of India | of the plaintiff now shows. He established an institution together with provision for its perpetual maintenance.In evidence this trust has been called by the Secretary as ‘Educational Charitable Institution’. In the deed of settlement dated November 26, 1946, it was described by the British Government as “a public educational charity”. All in all it comes to a charitable endowment. It can be properly called a charitable trust. The Indian Trust Act will not govern it, as Section 1 of that Act lays down what Rai Kedar Nath created was a charitable trust as known to Hindu Law. Reading the notification as a whole it appears to me that the Wakf property as known to Muslim Law has been excepted from the acquisition proceedings. This has been done by the Government in exercise of its powers of eminent domain. I do not think that it will be proper to call the lands in question as Wakf property. This is not the sense which the word bears in the notification. In my opinion, the Chief Commissioner’s notification uses the expression ‘Wakf property’ in the sense in which Wakf is understood in Mohammedan Law.The Chief Commissioner’s notification under Section 4 Land Acquisition Act is in the nature of a statutory instrument. It uses the expression ‘Wakf property’. How do we interpret those words? I think these words must be construed according to the legal and technical meaning given to them by Muslim Law. They are not to be given the more popular, non-legal or ordinary dictionary meaning of the words. These words must be taken in their legal sense.” The Division Bench agreed with the learned Single Judge and observed: “In view of the aforesaid legal exposition of the `Wakf’ it cannot be said that the property of appellants, which may be Hindu charitable trust, would be termed as ‘Wakf property’. The learned Single Judge, to our mind, rightly held that while using his expression in the impugned Notification issued by the statutory authority under Section 4 of the Act the statutory authority would be presumed to be aware of the legal implication of the term ‘Wakf property’. Therefore, this term cannot be read as to embrace property impressed with the character of a charitable trust amongst the Hindus. Once the meaning of the words ‘Wakf property’ is clear, it is difficult to accept the argument of the learned Counsel for the appellants that ‘popular’ meaning should be given or that statutory authority loosely used the expression ‘Wakf’ and ‘trust’. If the interpretation suggested by the appellants of the term ‘Wakf property’ is accepted, it would amount to obliterating the distinction otherwise statutorily recognized by the Indian Trusts Act. No such interpretation can be given which nullifies the effect of the Provision of a Statute. While interpreting such a Notification like the one issued under Section 4 of the Act, the connotation of the word ‘Wakf’ as legally accepted is to be preferred to a non-legal connotation. After all the Notification passed under Sections 4 and 6 of the Land Acquisition Act is in exercise of statutory powers and may have the effect of subordinate legislation. Such Notification has serious ramifications. It cannot be inferred, therefore, that framers of the Notification did not know the technical or legal meaning of the word ‘Wakf property’ or used the expression loosely. It also cannot be presumed that authors of such statutory Notification were not aware of other religious charitable institutions and intended to include the same by the expression ‘Wakf property’. It appears that exclusion of ‘Wakf property’ was intentional knowing fully well the meaning thereof in Muslim Law with no intention to cover other religious charitable institutions.” 19. The Division Bench also rejected the argument that if Wakf created by non-Muslims is excluded from Clause (d) then the same would be violative of Articles 14 and 15 of the Constitution by observing that the said plea was not pressed before the learned Single Judge and even in the grounds of appeal, this plea was not taken. In the opinion of the Division Bench, by omitting to press the point before the learned Single Judge and not taking a ground in the memo of appeal, the appellants will be deemed to have abandoned this part of challenge to the acquisition proceedings.20. The argument of Mr. R. Venkataramani that by dedicating the land for a charitable purpose Rai Sahib Kedar Nath intended to create a Wakf lacks merit and deserves to be rejected. In the function organized on 25.12.1916 in Ramjas School, Kucha Ghasi Ram, Chandani Chowk, the dedicator is said to have made an announcement that he had created a Wakf and donated all his moveable and immoveable properties to the Society for charitable purposes but no evidence was produced before the learned Single Judge to prove this. Rather, the evidence produced before the learned Single Judge shows that even after the so called dedication of land for charitable purposes, the same continued in the name of Rai Sahib Kedar Nath till 1936 when he executed the release deed in favour of the Trust of which he himself was the founder trustee apart from being the Manager of the school and the President of the Society. The hawan ceremony performed by Rai Sahib Kedar Nath which was preceded by Samarpan and Sankalp also shows that he did not intend to create a Wakf. This is the reason why the objects of Ramjas College Society formed in 1917 do not make a mention of the Wakf allegedly created by Rai Sahib Kedar Nath. In the deed of settlement executed by the British Government, the institution was described as a public educational charity and not as a Wakf. Therefore, the concurrent finding recorded by the learned Single Judge and the Division Bench that what was created by Rai Sahib Kedar Nath was a public charitable trust and not a Wakf and the property acquiredvide notification dated 13.11.1959 was not a Wakf property does not call for interference. | 0[ds]10. We have considered the respective submissions. In our view, the appeal deserves to be dismissed because the appellants have not approached the Court with clean hands. In Ramjas Foundation v. Union of India, acquisition of the land situated at Sadhora Khurd was challenged on the ground of violation of Section 5A of the Act and also on the ground that land in question is exempted from acquisition because it is a Wakf property. Another plea taken by appellant No. 1 was that if the land belonging to educational and charitable institutions established by Hindus andis not treated as Wakf property, then the exemption Clause (d) is liable to be declared void for violation of Article 14 of the Constitution.In our view, the appellants are not entitled to any relief because despite strong indictment by this Court in Ramjas Foundation v. Union of India, they deliberately refrained from mentioning details of the cases instituted by them in respect of the land situated at Sadhora Khurd and rejection of their claim for exemption under Clause (d) of notification dated 13.11.1959 by the High Court and this Court.17. Notwithstanding the above noted conclusion, we have thought it proper to deal with the issue raised in the appeal on merits. The institution of Wakf owes its origin to a rule laid down by the prophet of Islam. It meanstying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings. When once it is declared that a particular property is Wakf, or any such expression is used as implies Wakf, or the tenor of the document shows, if there is athat a dedication to pious or charitable purpose is meant, the right of Wakif is extinguished and the ownership is transferred to the Almighty. In his book on Mohammedan Law (Fourth Edition) Volume I, Ammer Ali has said,person or whatever creed may create Wakf, but the law requires that the object for which the dedication is made should be lawful according to the creed of the dedicator as well as the Islamic doctrines. Divine approbation being the essential in the constitution of a Wakf if the object for which a dedication is made is sinful, either according to the laws of Islam or to the creed of the dedicator it would not beThis shows that a non Muslim can also create a Wakf for any purpose which is religious under the Mohammedan Law. However, the object of the Wakf must be lawful according to the religious creed of the maker as well.18. While dealing with the question whether the land belonging to appellant No.1 is Wakf property and is exempted from acquisition, the learned Single Judge analysed the pleadings and documents produced by the parties, referred to the concept ofpropounded by Ammer Ali, outlines of Mohammedan Law by Prof. A.A.A. Fayzee (Chapter IX pg.the judgments of the Privy Council and various High Courts in Vidya Viruthi v. Baluswami, AIR 1922 PC 123; Mami v. Kallandar Ammal, 54 IA 23; Motishah v. Abdul Gaffar, AIR 1956 Nag. 38; Arur Singh v. Badar Din, AIR 1940 Lah. 119; Fuzlur Rahaman v. Anath Bandhu Pal, (1911) 16 CWN 114; Misra Hidavat Beg v. Seth Behari Lal, AIR 1941 All.The Division Bench also rejected the argument that if Wakf created byis excluded from Clause (d) then the same would be violative of Articles 14 and 15 of the Constitution by observing that the said plea was not pressed before the learned Single Judge and even in the grounds of appeal, this plea was not taken. In the opinion of the Division Bench, by omitting to press the point before the learned Single Judge and not taking a ground in the memo of appeal, the appellants will be deemed to have abandoned this part of challenge to the acquisition proceedings.20. The argument of Mr. R. Venkataramani that by dedicating the land for a charitable purpose Rai Sahib Kedar Nath intended to create a Wakf lacks merit and deserves to be rejected. In the function organized on 25.12.1916 in Ramjas School, Kucha Ghasi Ram, Chandani Chowk, the dedicator is said to have made an announcement that he had created a Wakf and donated all his moveable and immoveable properties to the Society for charitable purposes but no evidence was produced before the learned Single Judge to prove this. Rather, the evidence produced before the learned Single Judge shows that even after the so called dedication of land for charitable purposes, the same continued in the name of Rai Sahib Kedar Nath till 1936 when he executed the release deed in favour of the Trust of which he himself was the founder trustee apart from being the Manager of the school and the President of the Society. The hawan ceremony performed by Rai Sahib Kedar Nath which was preceded by Samarpan and Sankalp also shows that he did not intend to create a Wakf. This is the reason why the objects of Ramjas College Society formed in 1917 do not make a mention of the Wakf allegedly created by Rai Sahib Kedar Nath. In the deed of settlement executed by the British Government, the institution was described as a public educational charity and not as a Wakf. Therefore, the concurrent finding recorded by the learned Single Judge and the Division Bench that what was created by Rai Sahib Kedar Nath was a public charitable trust and not a Wakf and the property acquiredvide notification dated 13.11.1959 was not a Wakf property does not call for interference. | 0 | 9,170 | 1,007 | ### 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:
of the plaintiff now shows. He established an institution together with provision for its perpetual maintenance.In evidence this trust has been called by the Secretary as ‘Educational Charitable Institution’. In the deed of settlement dated November 26, 1946, it was described by the British Government as “a public educational charity”. All in all it comes to a charitable endowment. It can be properly called a charitable trust. The Indian Trust Act will not govern it, as Section 1 of that Act lays down what Rai Kedar Nath created was a charitable trust as known to Hindu Law. Reading the notification as a whole it appears to me that the Wakf property as known to Muslim Law has been excepted from the acquisition proceedings. This has been done by the Government in exercise of its powers of eminent domain. I do not think that it will be proper to call the lands in question as Wakf property. This is not the sense which the word bears in the notification. In my opinion, the Chief Commissioner’s notification uses the expression ‘Wakf property’ in the sense in which Wakf is understood in Mohammedan Law.The Chief Commissioner’s notification under Section 4 Land Acquisition Act is in the nature of a statutory instrument. It uses the expression ‘Wakf property’. How do we interpret those words? I think these words must be construed according to the legal and technical meaning given to them by Muslim Law. They are not to be given the more popular, non-legal or ordinary dictionary meaning of the words. These words must be taken in their legal sense.” The Division Bench agreed with the learned Single Judge and observed: “In view of the aforesaid legal exposition of the `Wakf’ it cannot be said that the property of appellants, which may be Hindu charitable trust, would be termed as ‘Wakf property’. The learned Single Judge, to our mind, rightly held that while using his expression in the impugned Notification issued by the statutory authority under Section 4 of the Act the statutory authority would be presumed to be aware of the legal implication of the term ‘Wakf property’. Therefore, this term cannot be read as to embrace property impressed with the character of a charitable trust amongst the Hindus. Once the meaning of the words ‘Wakf property’ is clear, it is difficult to accept the argument of the learned Counsel for the appellants that ‘popular’ meaning should be given or that statutory authority loosely used the expression ‘Wakf’ and ‘trust’. If the interpretation suggested by the appellants of the term ‘Wakf property’ is accepted, it would amount to obliterating the distinction otherwise statutorily recognized by the Indian Trusts Act. No such interpretation can be given which nullifies the effect of the Provision of a Statute. While interpreting such a Notification like the one issued under Section 4 of the Act, the connotation of the word ‘Wakf’ as legally accepted is to be preferred to a non-legal connotation. After all the Notification passed under Sections 4 and 6 of the Land Acquisition Act is in exercise of statutory powers and may have the effect of subordinate legislation. Such Notification has serious ramifications. It cannot be inferred, therefore, that framers of the Notification did not know the technical or legal meaning of the word ‘Wakf property’ or used the expression loosely. It also cannot be presumed that authors of such statutory Notification were not aware of other religious charitable institutions and intended to include the same by the expression ‘Wakf property’. It appears that exclusion of ‘Wakf property’ was intentional knowing fully well the meaning thereof in Muslim Law with no intention to cover other religious charitable institutions.” 19. The Division Bench also rejected the argument that if Wakf created by non-Muslims is excluded from Clause (d) then the same would be violative of Articles 14 and 15 of the Constitution by observing that the said plea was not pressed before the learned Single Judge and even in the grounds of appeal, this plea was not taken. In the opinion of the Division Bench, by omitting to press the point before the learned Single Judge and not taking a ground in the memo of appeal, the appellants will be deemed to have abandoned this part of challenge to the acquisition proceedings.20. The argument of Mr. R. Venkataramani that by dedicating the land for a charitable purpose Rai Sahib Kedar Nath intended to create a Wakf lacks merit and deserves to be rejected. In the function organized on 25.12.1916 in Ramjas School, Kucha Ghasi Ram, Chandani Chowk, the dedicator is said to have made an announcement that he had created a Wakf and donated all his moveable and immoveable properties to the Society for charitable purposes but no evidence was produced before the learned Single Judge to prove this. Rather, the evidence produced before the learned Single Judge shows that even after the so called dedication of land for charitable purposes, the same continued in the name of Rai Sahib Kedar Nath till 1936 when he executed the release deed in favour of the Trust of which he himself was the founder trustee apart from being the Manager of the school and the President of the Society. The hawan ceremony performed by Rai Sahib Kedar Nath which was preceded by Samarpan and Sankalp also shows that he did not intend to create a Wakf. This is the reason why the objects of Ramjas College Society formed in 1917 do not make a mention of the Wakf allegedly created by Rai Sahib Kedar Nath. In the deed of settlement executed by the British Government, the institution was described as a public educational charity and not as a Wakf. Therefore, the concurrent finding recorded by the learned Single Judge and the Division Bench that what was created by Rai Sahib Kedar Nath was a public charitable trust and not a Wakf and the property acquiredvide notification dated 13.11.1959 was not a Wakf property does not call for interference.
### Response:
0
### Explanation:
10. We have considered the respective submissions. In our view, the appeal deserves to be dismissed because the appellants have not approached the Court with clean hands. In Ramjas Foundation v. Union of India, acquisition of the land situated at Sadhora Khurd was challenged on the ground of violation of Section 5A of the Act and also on the ground that land in question is exempted from acquisition because it is a Wakf property. Another plea taken by appellant No. 1 was that if the land belonging to educational and charitable institutions established by Hindus andis not treated as Wakf property, then the exemption Clause (d) is liable to be declared void for violation of Article 14 of the Constitution.In our view, the appellants are not entitled to any relief because despite strong indictment by this Court in Ramjas Foundation v. Union of India, they deliberately refrained from mentioning details of the cases instituted by them in respect of the land situated at Sadhora Khurd and rejection of their claim for exemption under Clause (d) of notification dated 13.11.1959 by the High Court and this Court.17. Notwithstanding the above noted conclusion, we have thought it proper to deal with the issue raised in the appeal on merits. The institution of Wakf owes its origin to a rule laid down by the prophet of Islam. It meanstying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings. When once it is declared that a particular property is Wakf, or any such expression is used as implies Wakf, or the tenor of the document shows, if there is athat a dedication to pious or charitable purpose is meant, the right of Wakif is extinguished and the ownership is transferred to the Almighty. In his book on Mohammedan Law (Fourth Edition) Volume I, Ammer Ali has said,person or whatever creed may create Wakf, but the law requires that the object for which the dedication is made should be lawful according to the creed of the dedicator as well as the Islamic doctrines. Divine approbation being the essential in the constitution of a Wakf if the object for which a dedication is made is sinful, either according to the laws of Islam or to the creed of the dedicator it would not beThis shows that a non Muslim can also create a Wakf for any purpose which is religious under the Mohammedan Law. However, the object of the Wakf must be lawful according to the religious creed of the maker as well.18. While dealing with the question whether the land belonging to appellant No.1 is Wakf property and is exempted from acquisition, the learned Single Judge analysed the pleadings and documents produced by the parties, referred to the concept ofpropounded by Ammer Ali, outlines of Mohammedan Law by Prof. A.A.A. Fayzee (Chapter IX pg.the judgments of the Privy Council and various High Courts in Vidya Viruthi v. Baluswami, AIR 1922 PC 123; Mami v. Kallandar Ammal, 54 IA 23; Motishah v. Abdul Gaffar, AIR 1956 Nag. 38; Arur Singh v. Badar Din, AIR 1940 Lah. 119; Fuzlur Rahaman v. Anath Bandhu Pal, (1911) 16 CWN 114; Misra Hidavat Beg v. Seth Behari Lal, AIR 1941 All.The Division Bench also rejected the argument that if Wakf created byis excluded from Clause (d) then the same would be violative of Articles 14 and 15 of the Constitution by observing that the said plea was not pressed before the learned Single Judge and even in the grounds of appeal, this plea was not taken. In the opinion of the Division Bench, by omitting to press the point before the learned Single Judge and not taking a ground in the memo of appeal, the appellants will be deemed to have abandoned this part of challenge to the acquisition proceedings.20. The argument of Mr. R. Venkataramani that by dedicating the land for a charitable purpose Rai Sahib Kedar Nath intended to create a Wakf lacks merit and deserves to be rejected. In the function organized on 25.12.1916 in Ramjas School, Kucha Ghasi Ram, Chandani Chowk, the dedicator is said to have made an announcement that he had created a Wakf and donated all his moveable and immoveable properties to the Society for charitable purposes but no evidence was produced before the learned Single Judge to prove this. Rather, the evidence produced before the learned Single Judge shows that even after the so called dedication of land for charitable purposes, the same continued in the name of Rai Sahib Kedar Nath till 1936 when he executed the release deed in favour of the Trust of which he himself was the founder trustee apart from being the Manager of the school and the President of the Society. The hawan ceremony performed by Rai Sahib Kedar Nath which was preceded by Samarpan and Sankalp also shows that he did not intend to create a Wakf. This is the reason why the objects of Ramjas College Society formed in 1917 do not make a mention of the Wakf allegedly created by Rai Sahib Kedar Nath. In the deed of settlement executed by the British Government, the institution was described as a public educational charity and not as a Wakf. Therefore, the concurrent finding recorded by the learned Single Judge and the Division Bench that what was created by Rai Sahib Kedar Nath was a public charitable trust and not a Wakf and the property acquiredvide notification dated 13.11.1959 was not a Wakf property does not call for interference.
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Gurbinder Singh And Another Vs. Lal Singh And Another | Singh and Pratap Singh is concerned it began upon the death of Raj Kaur and not during her lifetime. That being so, Art. 142 cannot possibly be attracted whereas the Madras decision turns upon a case to which Art. 142 applied. No doubt, there, on behalf of the plaintiff-appellant it was argued on the authority, of Trustees, Executors and Agency Co. Ltd. v. Short (1888) 13 AC 793, that in cases of successive trespassers limitation ceases to run against the lawful owner of the land after an intruder has relinquished his possession that on the death of Punnayya it must be taken that there was an interruption in the possession and that there was an interval between Punnayyas death and Subbarayudus taking possession in his own right, however, minute the interval may be and that except in the case of succession or devolution all other cases would fall within the principle enunciated in Agency Co.s case (1888) 13 AC 793. The learned Judges did not accept the contention but relying upon the decision in Willis v. Earl Howe (1893) 2 Ch 545, and a passage in Dart on Vendors and Purchasers, Vol. 17th Edn. p. 474 held that the suit was barred by time. It may be pointed out that on Punnayyas death his mother would be the heir and that it was established in that case that she was living with his brother Subbarayudu and his other brothers Subbarayudu would, therefore, be a presumptive reversioner on the death of his mother and there was evidence to show that she was a consenting party to Subbarayudus enjoying the properties after Punnayyas death. It is under these circumstances that the High Court found it difficult to hold that there was a fresh trespass by Subbarayudu after the death of Punnayya. On the other hand, according to them, there was a continuity of possession because the person who continued to hold possession was the presumptive heir of the deceased. From the facts of the case it will be clear that what was tacked on was not the possession of independent trespassers at all. In the case before us what is being sought to be tacked on to the possession of the Raja and those who claim through him is the possession of Bakshi Singh and Pratap Singh. The Raja in his suit against Bakshi Singh challenged the right of Bakshi Singh and Pratap Singh to possession on the ground that they were trespassers. As it has turned out, the possession of the Raja, though obtained under the decree of a civil Court, was in itself a trespass on the rights of the persons who were in law entitled to possession of property. Thus this is a case of one trespasser trespassing against another trespasser. There is no connection between the two and, therefore, in law their possession cannot be tacked, on to one another. As pointed out by Varadachariar, J., in Rajagopala Naidu v. Ramasubramania Ayyar, AIR 1935 Mad 449 :"Further the doctrine of independent trespassers will come in only, when the second man trespasses upon the possession of the first or the first man abandons possession." where it applies the principle laid down in Agency Co.s case (1888) 13 AC 793, would apply and preclude the tacking of possession of successive trespassers. The following observations of Lord Macnaghten in that case are pertinent and run thus:"They are of opinion that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place. There is no one against whom he can bring an action. He cannot make any entry upon himself. There is no positive enactment, nor is there any principle of law, which requires him to do any act, to issue any notice or to perform any ceremony in order to rehabilitate himself. No new departure is necessary: The possession of the intruder; ineffectual for the purpose of transferring title, ceases upon its abandonment to be effectual for any purpose. It does not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vagrant. There is not, in their Lordships opinion, any analogy between the case supposed and the case of successive disabilities mentioned in the statute. There the statute continues to run because there is a person in possession in whose favour it is running." 10. This view has not been departed from in any case. At any rate none was brought to our notice where it has not been followed. Apart from that what we are concerned with is the language used by the legislature in the third column of Art. 144. The starting point of limitation there stated is the date when the possession of the defendant becomes adverse to the plaintiff. The word "defendant" is defined thus in S. 2 (4) of the Limitation Act thus :defendant includes any person from or through whom a defendant derives his liability to be sued" 11. No doubt, this is an inclusive definition but the gist of it is the existence of a jural relationship between different persons. There can be no jural relationship between two independent trespassers. Therefore, where a defendant in possession of property is sued by a person who has title to it but is out of possession what he has to show in defence is that he or anyone through whom he claims has been in possession for more than the statutory period. An independent trespasser not being such a person the defendant is not entitled to tack on the previous possession of that person to his own possession. In our opinion, therefore, the respondents suit is within time and has been rightly decreed by the Courts below. | 0[ds]5. In the absence of any appeal by Prem Kaur against the decision of the High Court confirming the dismissal of her suit we have only to consider the claim of the respondents to half the property left by Raj KaurTherefore, it is more accurate to say that the possession of the Raja became adverse to Prem Kaur and to the respondents Lal Singh and Pratap Singh as from October, 1938. Kehar Singh who was a transferee from the Raja stood in the Rajas position and got the benefit of the Rajas adverse possession. Similarly the appellants who had pre-empted these lands under the decree obtained against Kehar Singh got advantage not only of the Rajas adverse possession but also of Kehar Singhs. The sum total of the adverse possession of these three persons at the date of the respondents suit would, however, be less than 12 years and so the respondents suit could not be said to be barred by Art. 144 if the starting point of limitation is taken to be some day in October, 1938From the facts of the case it will be clear that what was tacked on was not the possession of independent trespassers at all. In the case before us what is being sought to be tacked on to the possession of the Raja and those who claim through him is the possession of Bakshi Singh and Pratap Singh. The Raja in his suit against Bakshi Singh challenged the right of Bakshi Singh and Pratap Singh to possession on the ground that they were trespassers. As it has turned out, the possession of the Raja, though obtained under the decree of a civil Court, was in itself a trespass on the rights of the persons who were in law entitled to possession of property. Thus this is a case of one trespasser trespassing against another trespasser. There is no connection between the two and, therefore, in law their possession cannot be tacked, on to one another. As pointed out by Varadachariar, J., in Rajagopala Naidu v. Ramasubramania Ayyar, AIR 1935 Mad 449 :"Further the doctrine of independent trespassers will come in only, when the second man trespasses upon the possession of the first or the first man abandons possession."10. This view has not been departed from in any case. At any rate none was brought to our notice where it has not been followed. Apart from that what we are concerned with is the language used by the legislature in the third column of Art. 144. The starting point of limitation there stated is the date when the possession of the defendant becomes adverse to the plaintiff. The word "defendant" is defined thus in S. 2 (4) of the Limitation Act thus :defendant includes any person from or through whom a defendant derives his liability to be sued"No doubt, this is an inclusive definition but the gist of it is the existence of a jural relationship between different persons. There can be no jural relationship between two independent trespassers. Therefore, where a defendant in possession of property is sued by a person who has title to it but is out of possession what he has to show in defence is that he or anyone through whom he claims has been in possession for more than the statutory period. An independent trespasser not being such a person the defendant is not entitled to tack on the previous possession of that person to his own possession. In our opinion, therefore, the respondents suit is within time and has been rightly decreed by the Courts below. | 0 | 3,524 | 656 | ### 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:
Singh and Pratap Singh is concerned it began upon the death of Raj Kaur and not during her lifetime. That being so, Art. 142 cannot possibly be attracted whereas the Madras decision turns upon a case to which Art. 142 applied. No doubt, there, on behalf of the plaintiff-appellant it was argued on the authority, of Trustees, Executors and Agency Co. Ltd. v. Short (1888) 13 AC 793, that in cases of successive trespassers limitation ceases to run against the lawful owner of the land after an intruder has relinquished his possession that on the death of Punnayya it must be taken that there was an interruption in the possession and that there was an interval between Punnayyas death and Subbarayudus taking possession in his own right, however, minute the interval may be and that except in the case of succession or devolution all other cases would fall within the principle enunciated in Agency Co.s case (1888) 13 AC 793. The learned Judges did not accept the contention but relying upon the decision in Willis v. Earl Howe (1893) 2 Ch 545, and a passage in Dart on Vendors and Purchasers, Vol. 17th Edn. p. 474 held that the suit was barred by time. It may be pointed out that on Punnayyas death his mother would be the heir and that it was established in that case that she was living with his brother Subbarayudu and his other brothers Subbarayudu would, therefore, be a presumptive reversioner on the death of his mother and there was evidence to show that she was a consenting party to Subbarayudus enjoying the properties after Punnayyas death. It is under these circumstances that the High Court found it difficult to hold that there was a fresh trespass by Subbarayudu after the death of Punnayya. On the other hand, according to them, there was a continuity of possession because the person who continued to hold possession was the presumptive heir of the deceased. From the facts of the case it will be clear that what was tacked on was not the possession of independent trespassers at all. In the case before us what is being sought to be tacked on to the possession of the Raja and those who claim through him is the possession of Bakshi Singh and Pratap Singh. The Raja in his suit against Bakshi Singh challenged the right of Bakshi Singh and Pratap Singh to possession on the ground that they were trespassers. As it has turned out, the possession of the Raja, though obtained under the decree of a civil Court, was in itself a trespass on the rights of the persons who were in law entitled to possession of property. Thus this is a case of one trespasser trespassing against another trespasser. There is no connection between the two and, therefore, in law their possession cannot be tacked, on to one another. As pointed out by Varadachariar, J., in Rajagopala Naidu v. Ramasubramania Ayyar, AIR 1935 Mad 449 :"Further the doctrine of independent trespassers will come in only, when the second man trespasses upon the possession of the first or the first man abandons possession." where it applies the principle laid down in Agency Co.s case (1888) 13 AC 793, would apply and preclude the tacking of possession of successive trespassers. The following observations of Lord Macnaghten in that case are pertinent and run thus:"They are of opinion that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the intrusion took place. There is no one against whom he can bring an action. He cannot make any entry upon himself. There is no positive enactment, nor is there any principle of law, which requires him to do any act, to issue any notice or to perform any ceremony in order to rehabilitate himself. No new departure is necessary: The possession of the intruder; ineffectual for the purpose of transferring title, ceases upon its abandonment to be effectual for any purpose. It does not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vagrant. There is not, in their Lordships opinion, any analogy between the case supposed and the case of successive disabilities mentioned in the statute. There the statute continues to run because there is a person in possession in whose favour it is running." 10. This view has not been departed from in any case. At any rate none was brought to our notice where it has not been followed. Apart from that what we are concerned with is the language used by the legislature in the third column of Art. 144. The starting point of limitation there stated is the date when the possession of the defendant becomes adverse to the plaintiff. The word "defendant" is defined thus in S. 2 (4) of the Limitation Act thus :defendant includes any person from or through whom a defendant derives his liability to be sued" 11. No doubt, this is an inclusive definition but the gist of it is the existence of a jural relationship between different persons. There can be no jural relationship between two independent trespassers. Therefore, where a defendant in possession of property is sued by a person who has title to it but is out of possession what he has to show in defence is that he or anyone through whom he claims has been in possession for more than the statutory period. An independent trespasser not being such a person the defendant is not entitled to tack on the previous possession of that person to his own possession. In our opinion, therefore, the respondents suit is within time and has been rightly decreed by the Courts below.
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0
### Explanation:
5. In the absence of any appeal by Prem Kaur against the decision of the High Court confirming the dismissal of her suit we have only to consider the claim of the respondents to half the property left by Raj KaurTherefore, it is more accurate to say that the possession of the Raja became adverse to Prem Kaur and to the respondents Lal Singh and Pratap Singh as from October, 1938. Kehar Singh who was a transferee from the Raja stood in the Rajas position and got the benefit of the Rajas adverse possession. Similarly the appellants who had pre-empted these lands under the decree obtained against Kehar Singh got advantage not only of the Rajas adverse possession but also of Kehar Singhs. The sum total of the adverse possession of these three persons at the date of the respondents suit would, however, be less than 12 years and so the respondents suit could not be said to be barred by Art. 144 if the starting point of limitation is taken to be some day in October, 1938From the facts of the case it will be clear that what was tacked on was not the possession of independent trespassers at all. In the case before us what is being sought to be tacked on to the possession of the Raja and those who claim through him is the possession of Bakshi Singh and Pratap Singh. The Raja in his suit against Bakshi Singh challenged the right of Bakshi Singh and Pratap Singh to possession on the ground that they were trespassers. As it has turned out, the possession of the Raja, though obtained under the decree of a civil Court, was in itself a trespass on the rights of the persons who were in law entitled to possession of property. Thus this is a case of one trespasser trespassing against another trespasser. There is no connection between the two and, therefore, in law their possession cannot be tacked, on to one another. As pointed out by Varadachariar, J., in Rajagopala Naidu v. Ramasubramania Ayyar, AIR 1935 Mad 449 :"Further the doctrine of independent trespassers will come in only, when the second man trespasses upon the possession of the first or the first man abandons possession."10. This view has not been departed from in any case. At any rate none was brought to our notice where it has not been followed. Apart from that what we are concerned with is the language used by the legislature in the third column of Art. 144. The starting point of limitation there stated is the date when the possession of the defendant becomes adverse to the plaintiff. The word "defendant" is defined thus in S. 2 (4) of the Limitation Act thus :defendant includes any person from or through whom a defendant derives his liability to be sued"No doubt, this is an inclusive definition but the gist of it is the existence of a jural relationship between different persons. There can be no jural relationship between two independent trespassers. Therefore, where a defendant in possession of property is sued by a person who has title to it but is out of possession what he has to show in defence is that he or anyone through whom he claims has been in possession for more than the statutory period. An independent trespasser not being such a person the defendant is not entitled to tack on the previous possession of that person to his own possession. In our opinion, therefore, the respondents suit is within time and has been rightly decreed by the Courts below.
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Mohammad Ghouse Vs. State Of Andhra | Government propose to revise the original orders passed on such charges.Provided that it shall not be necessary to consult the Tribunal..(i) in any case in which the Tribunal has, at any previous stage, given advice in regard to the order to be passed, and no fresh question has thereafter arisen for determination, or,(ii) where the Government propose to pass orders rejecting such appeal or petition.(2) The Government may, subject to the provisions of rule 5, also refer to the Tribunal any other case or; class of cases which, they consider should be dealt with by the Tribunal:Provided that the following cases shall not be referred to the Tribunal namely-.(i) Cases arising in the Judicial Department;(ii) Cases arising against the Government servants in the Subordinate ranks of the police forces of the rank of Sub-Inspector and below, unless the cases are against them together with officers of higher ranks."8. The argument of the appellant is that whereas under the proviso to R.4 of the Madras Civil Services Rules, enquiries against subordinate judicial officers could not be referred to a Tribunal, under R.4 (1) (a) of the Andhra Civil Services Rules it was obligatory on the part of the Government to refer the cases of all Government servants and drawing a monthly salary of Rs. 150 and above to a Tribunal. According to the appellant, the result of this change was that such enquiry as was held after October 1, 1953, by the High Court and all orders passed by it thereafter were bad, and that he had a right to have his case referred to and determined by the Tribunal in accordance, with R. 4(1)(a). There has been some argument before us as to whether the concluding proviso in R. 4 of the Andhra Civil Services Rules qualifies both sub-rules (1) and (2) or only sub-rule (2).While, on the one hand there is force in the contention of the appellant that having regard to its setting, the proviso should more properly be read as qualifying sub-rule (2), we are inclined to agree with the learned Judges of the High Court that, read as a whole, the Rule does not show an intention to depart from the procedure laid down in the Madras Civil services Rules.The point however, is one of academic interest, as the Rule in question has subsequently been amended by G. O, No. 938 dated April 11, 1955, and it expressly provides that the amendment shall be deemed to have come into force on October 1, 1953. That amendment is as follows:"The rule 4 of the said rules, the proviso occurring after sub-r.(2) shall be omitted, and in lieu thereof, the following sub-rule shall be inserted, namely:-(3) Notwithstanding anything contained in sub-rule (1) or sub-rule (2), the following cases shall not be referred to the Tribunal namely:(i) cases arising in the Judicial Department: and:(ii) cases arising against Government servants in the subordinate ranks of the Police forces of the rank of Sub- Inspector and below, unless the cases are against them together with officers of higher rank."9. By reason of this amendment, which is expressly retrospective in character, the main ground of objection on which the application of the appellant was founded, is no longer tenable. In view of this conclusion, it becomes unnecessary to consider the contention of the respondent that R.4 of the Andhra Civil Services Rules could not, in any event, apply to enquiries which had been validly initiated previously thereto.10. It was next contended on behalf of the appellant that as the authority which appointed him was the Governor of the Province, it was only that authority that could dismiss or remove him from service, and that the order of suspension made by the High Court on January 28, 1954, was in contravention of Art. 311 of the Constitution, and was, inconsequence, bad. This contention does not appear to have been pressed in the High Court, and is, moreover, without substance.The facts are that Balakrishna Ayyar J. sent his report on the enquiry into the charges against the appellant, and expressed his opinion that he should be, dismissed or removed from service. The High Court approved of it, and passed an order on January 28, 1954, suspending him until further orders. The report was then sent to the Government for action, and in fact, the Andhra Government has issued a notice to the appellant on August 12, 1954, to show cause why he should not be dismissed or removed from service. Thus, it is the appropriate authority under Art. 311 that proposes to take action against the appellant, and it is for that authority to pass the ultimate order in the matter. The order passed by the High Court on January 28, 1954, is merely one of suspension pending final orders by the Government, and such an order is neither one of dismissal nor of removal from service within Art.311 of the Constitution. It was also argued that the High Court had no authority under the rules to suspend a judicial officer pending final orders of the Government. But under R. 13 of the Madras Civil Services (Classification, Control and Appeal) Rules, it is the high Court of Judicature at Madras that is constituted as the authority which may impose suspension pending enquiry into grave charges under R.17(e) against the Members of the State Judicial Service. The order in question, therefore, falls within this rule, and is perfectly intra vires.11. It was lastly contended for the appellant that even if the High Court could hold a preliminary enquiry into the conduct of a judicial officer, it had no jurisdiction to decide the matter finally, that the findings given by Balakrishna Ayyar, J. should not be held to conclude the question against the appellant, and that the Government was bound to hold a fresh enquiry and decide for itself whether the charges were well founded. No such question was raised in the petition or in the High Court and we must, therefore, decline to entertain it.12. | 0[ds]While, on the one hand there is force in the contention of the appellant that having regard to its setting, the proviso should more properly be read as qualifying sub-rule (2), we are inclined to agree with the learned Judges of the High Court that, read as a whole, the Rule does not show an intention to depart from the procedure laid down in the Madras Civil services Rules.The point however, is one of academic interest, as the Rule in question has subsequently been amended by G. O, No. 938 dated April 11, 1955, and it expressly provides that the amendment shall be deemed to have come into force on October 1,reason of this amendment, which is expressly retrospective in character, the main ground of objection on which the application of the appellant was founded, is no longer tenable. In view of this conclusion, it becomes unnecessary to consider the contention of the respondent that R.4 of the Andhra Civil Services Rules could not, in any event, apply to enquiries which had been validly initiated previouslyit is the appropriate authority under Art. 311 that proposes to take action against the appellant, and it is for that authority to pass the ultimate order in the matter. The order passed by the High Court on January 28, 1954, is merely one of suspension pending final orders by the Government, and such an order is neither one of dismissal nor of removal from service within Art.311 of the Constitution. It was also argued that the High Court had no authority under the rules to suspend a judicial officer pending final orders of the Government. But under R. 13 of the Madras Civil Services (Classification, Control and Appeal) Rules, it is the high Court of Judicature at Madras that is constituted as the authority which may impose suspension pending enquiry into grave charges under R.17(e) against the Members of the State Judicial Service. The order in question, therefore, falls within this rule, and is perfectly intrasuch question was raised in the petition or in the High Court and we must, therefore, decline to entertain it. | 0 | 2,987 | 399 | ### 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:
Government propose to revise the original orders passed on such charges.Provided that it shall not be necessary to consult the Tribunal..(i) in any case in which the Tribunal has, at any previous stage, given advice in regard to the order to be passed, and no fresh question has thereafter arisen for determination, or,(ii) where the Government propose to pass orders rejecting such appeal or petition.(2) The Government may, subject to the provisions of rule 5, also refer to the Tribunal any other case or; class of cases which, they consider should be dealt with by the Tribunal:Provided that the following cases shall not be referred to the Tribunal namely-.(i) Cases arising in the Judicial Department;(ii) Cases arising against the Government servants in the Subordinate ranks of the police forces of the rank of Sub-Inspector and below, unless the cases are against them together with officers of higher ranks."8. The argument of the appellant is that whereas under the proviso to R.4 of the Madras Civil Services Rules, enquiries against subordinate judicial officers could not be referred to a Tribunal, under R.4 (1) (a) of the Andhra Civil Services Rules it was obligatory on the part of the Government to refer the cases of all Government servants and drawing a monthly salary of Rs. 150 and above to a Tribunal. According to the appellant, the result of this change was that such enquiry as was held after October 1, 1953, by the High Court and all orders passed by it thereafter were bad, and that he had a right to have his case referred to and determined by the Tribunal in accordance, with R. 4(1)(a). There has been some argument before us as to whether the concluding proviso in R. 4 of the Andhra Civil Services Rules qualifies both sub-rules (1) and (2) or only sub-rule (2).While, on the one hand there is force in the contention of the appellant that having regard to its setting, the proviso should more properly be read as qualifying sub-rule (2), we are inclined to agree with the learned Judges of the High Court that, read as a whole, the Rule does not show an intention to depart from the procedure laid down in the Madras Civil services Rules.The point however, is one of academic interest, as the Rule in question has subsequently been amended by G. O, No. 938 dated April 11, 1955, and it expressly provides that the amendment shall be deemed to have come into force on October 1, 1953. That amendment is as follows:"The rule 4 of the said rules, the proviso occurring after sub-r.(2) shall be omitted, and in lieu thereof, the following sub-rule shall be inserted, namely:-(3) Notwithstanding anything contained in sub-rule (1) or sub-rule (2), the following cases shall not be referred to the Tribunal namely:(i) cases arising in the Judicial Department: and:(ii) cases arising against Government servants in the subordinate ranks of the Police forces of the rank of Sub- Inspector and below, unless the cases are against them together with officers of higher rank."9. By reason of this amendment, which is expressly retrospective in character, the main ground of objection on which the application of the appellant was founded, is no longer tenable. In view of this conclusion, it becomes unnecessary to consider the contention of the respondent that R.4 of the Andhra Civil Services Rules could not, in any event, apply to enquiries which had been validly initiated previously thereto.10. It was next contended on behalf of the appellant that as the authority which appointed him was the Governor of the Province, it was only that authority that could dismiss or remove him from service, and that the order of suspension made by the High Court on January 28, 1954, was in contravention of Art. 311 of the Constitution, and was, inconsequence, bad. This contention does not appear to have been pressed in the High Court, and is, moreover, without substance.The facts are that Balakrishna Ayyar J. sent his report on the enquiry into the charges against the appellant, and expressed his opinion that he should be, dismissed or removed from service. The High Court approved of it, and passed an order on January 28, 1954, suspending him until further orders. The report was then sent to the Government for action, and in fact, the Andhra Government has issued a notice to the appellant on August 12, 1954, to show cause why he should not be dismissed or removed from service. Thus, it is the appropriate authority under Art. 311 that proposes to take action against the appellant, and it is for that authority to pass the ultimate order in the matter. The order passed by the High Court on January 28, 1954, is merely one of suspension pending final orders by the Government, and such an order is neither one of dismissal nor of removal from service within Art.311 of the Constitution. It was also argued that the High Court had no authority under the rules to suspend a judicial officer pending final orders of the Government. But under R. 13 of the Madras Civil Services (Classification, Control and Appeal) Rules, it is the high Court of Judicature at Madras that is constituted as the authority which may impose suspension pending enquiry into grave charges under R.17(e) against the Members of the State Judicial Service. The order in question, therefore, falls within this rule, and is perfectly intra vires.11. It was lastly contended for the appellant that even if the High Court could hold a preliminary enquiry into the conduct of a judicial officer, it had no jurisdiction to decide the matter finally, that the findings given by Balakrishna Ayyar, J. should not be held to conclude the question against the appellant, and that the Government was bound to hold a fresh enquiry and decide for itself whether the charges were well founded. No such question was raised in the petition or in the High Court and we must, therefore, decline to entertain it.12.
### Response:
0
### Explanation:
While, on the one hand there is force in the contention of the appellant that having regard to its setting, the proviso should more properly be read as qualifying sub-rule (2), we are inclined to agree with the learned Judges of the High Court that, read as a whole, the Rule does not show an intention to depart from the procedure laid down in the Madras Civil services Rules.The point however, is one of academic interest, as the Rule in question has subsequently been amended by G. O, No. 938 dated April 11, 1955, and it expressly provides that the amendment shall be deemed to have come into force on October 1,reason of this amendment, which is expressly retrospective in character, the main ground of objection on which the application of the appellant was founded, is no longer tenable. In view of this conclusion, it becomes unnecessary to consider the contention of the respondent that R.4 of the Andhra Civil Services Rules could not, in any event, apply to enquiries which had been validly initiated previouslyit is the appropriate authority under Art. 311 that proposes to take action against the appellant, and it is for that authority to pass the ultimate order in the matter. The order passed by the High Court on January 28, 1954, is merely one of suspension pending final orders by the Government, and such an order is neither one of dismissal nor of removal from service within Art.311 of the Constitution. It was also argued that the High Court had no authority under the rules to suspend a judicial officer pending final orders of the Government. But under R. 13 of the Madras Civil Services (Classification, Control and Appeal) Rules, it is the high Court of Judicature at Madras that is constituted as the authority which may impose suspension pending enquiry into grave charges under R.17(e) against the Members of the State Judicial Service. The order in question, therefore, falls within this rule, and is perfectly intrasuch question was raised in the petition or in the High Court and we must, therefore, decline to entertain it.
|
Lakhi Ram Ram Dass Vs. Har Prasad Syal and Others | in respect of her property left in Pakistan". 14. From the statement of counsel before the Tribunal and the Tribunals said order it would appear (1) that the application was for declaration and adjustment, (2) that the application was in respect of the joint debt of respondents 2 and 3, which must mean the sum of Rs. 40,000/- under the decree for which respondents 2 and 3 were jointly and severally liable, and (3) that that debt was declared to be Rupees 40,000/- but was to be paid in proportion to the compensation which respondent 2 would get on the claim made by her in respect of her property in Pakistan. It is also clear that the relief claimed by respondent 2 was for revision and apportionment of the said sum of Rs. 40,000/- under Sections 21 and 22 of the Act. 15. That being the position, it would be correct to say that the Tribunals order related to Rs. 40,000/-, out of the total decretal amount of Rs. 80,000/- in respect of which respondents 2 and 3 were jointly and severally liable. It would further appear from the statement of counsel before the Tribunal that the liability of respondent 3, as the surety for that amount, was not dealt with by the Tribunal, and therefore, remained unaffected. 16. Since it would appear that the application was in respect of the debt jointly payable by respondents 2 and 3, i.e., in respect of Rs. 40,000/- only, we are not concerned in these appeals with the rest of the amount of Rs. 40,000/- for which respondents 1 and 2 only were liable. The amount of Rs. 29,000/- deposited in the executing court in Delhi on behalf of respondent 3 was obviously the balance due by respondent 3 in respect of his liability as the surety for Rs. 40,000/-, the appellants having already realised Rs. 11,000/- from him. From the order of the Tribunal, dated June 29, 1953, it is clear that it was made under sections 21 and 22 of the Act. That order became final and binding on the appellants as no appeal provided under the Act was ever filed against it by them. 17. Under S. 22 of the Act, it is the duty of the Tribunal, where a debt is due from a displaced debtor jointly with another person, to apportion the liability between them according to the rules therein laid down. Under clause (d) of Section 22, if one joint debtor is a displaced person and another is not, the sum apportioned to the non-displaced person shall not be deemed to be a debt within the meaning of the Act, and therefore, the creditor may in respect of such a debt seek any remedy open to him in a civil court or otherwise. Therefore, the appellants had the right to proceed in execution against respondent 3 in respect of his liability as the surety for 40,000/-. But his liability as such surety was co-extensive with the liability of respondents 1 and 2, the principal debtors, and could not exceed their liability. This principle is incorporated in cl. (g) of S. 22, which lays down that where the relationship between joint debtors is that of principal and surety, nothing contained in the Act shall prevent the institution of a suit for the recovery of the debt against the surety, but no decree shall be passed in such a suit for an amount in excess of the amount decreed or which can be decreed against the principal debtor in accordance with the provisions of the Act. 18. The position is thus clear that the appellants could not recover any amount from respondent 3 in excess of the amount claimable by them from respondents 1 and 2. No doubt, the Tribunals order had declared the joint debt to be Rs. 40,000/-, but it also provided that respondent 2 had to pay that amount in proportion to the compensation which she would receive under her claim in lieu of the property left by her in Pakistan. The amount recoverable from respondent 3 could not exceed that amount by reason of S. 22 (g) as also the principle that the liability of a surety is co-extensive with that of the principal debtor. It has not been the case of the appellants during any stage of these proceedings that the compensation payable to respondent 2 has so far been fixed or ascertained. So long as that has not been done, the extent of the liability of respondent 3 as the surety also cannot be fixed. In any event, since the liability of respondent 2, as the principal debtor, has been made payable from out of the compensation recoverable by her and in proportion to such compensation, the Tribunals order has superseded the decree at least as regards Rs. 40,000/- payable jointly and severally by respondents 2 and 3 thereunder. That order having provided (1) that the amount recoverable would be in proportion to the compensation, and (2) that it would be recovered from that compensation, the appellant could not claim Rs. 29,000/- deposited in the execution court, nor could that court order it to be paid to the appellants. In any case, so long as the compensation due to respondent 2 has not been ascertained, the appellants claim to the said amount of Rs. 29,000/- was premature as the liability of respondent 3, if any, could not until then be ascertained. Further, the order of the Ahmedabad court, which on its confirmation by the High Court of Bombay, became final throws another difficulty in the way of the appellants, disabling them from claiming the said sum of Rs. 29,000/-. In our view, the High Court was right in repelling such a claim by the appellants and rejecting their appeal. That being so, the High Court was also right in directing rateable distribution of that amount amongst the other creditors of respondent 3 who are respondents in the rest of the appeals before us. | 0[ds]On a reading of this order, there can be no doubt that the application for declaration and adjustment by respondent 2 was in respect of Rs. 40,000/jointly due by her as the principal debtor and respondent 3 as the guarantor and that it was that debt which the said order adjusted in the manner aforesaid, namely, that the amount recoverable by the appellants would be in proportion to the compensation which respondent 2 would get under a claim lodged by her in lieu of the property left by her in PakistanThis statement clearly means that the application was in respect of the amount of Rs. 40,000/under the said decree for which respondents 1 and 2, as the principal debtors and respondent 3, as the surety, were jointly and severally liable. The order then states that the said debt was liable to be "revised and apportioned" under Ss. 21 and 22 of the Act. Lastly, it says that in accordance with the compromise between the parties "it is hereby declared and ordered that Rs. 40,000/are due from the applicant (respondent 2 herein) to Lakhi Ram Ram Dass respondent (the appellants herein) and that respondent will be entitled to recover the sum as first charge from and in proportion of the compensation which the applicant will get on account of the claim preferred by her in respect of her property left in Pakistan"15. That being the position, it would be correct to say that the Tribunals order related to Rs., out of the total decretal amount of Rs. 80,000/in respect of which respondents 2 and 3 were jointly and severally liable. It would further appear from the statement of counsel before the Tribunal that the liability of respondent 3, as the surety for that amount, was not dealt with by the Tribunal, and therefore, remained unaffectedTherefore, the appellants had the right to proceed in execution against respondent 3 in respect of his liability as the surety for. But his liability as such surety wase with the liability of respondents 1 and 2, the principal debtors, and could not exceed their liability18. The position is thus clear that the appellants could not recover any amount from respondent 3 in excess of the amount claimable by them from respondents 1 and 2. No doubt, the Tribunals order had declared the joint debt to be Rs., but it also provided that respondent 2 had to pay that amount in proportion to the compensation which she would receive under her claim in lieu of the property left by her in Pakistan. The amount recoverable from respondent 3 could not exceed that amount by reason of S. 22 (g) as also the principle that the liability of a surety ise with that of the principal debtor. It has not been the case of the appellants during any stage of these proceedings that the compensation payable to respondent 2 has so far been fixed or ascertained. So long as that has not been done, the extent of the liability of respondent 3 as the surety also cannot be fixed. In any event, since the liability of respondent 2, as the principal debtor, has been made payable from out of the compensation recoverable by her and in proportion to such compensation, the Tribunals order has superseded the decree at least as regards Rs. 40,000/payable jointly and severally by respondents 2 and 3 thereunder. That order having provided (1) that the amount recoverable would be in proportion to the compensation, and (2) that it would be recovered from that compensation, the appellant could not claim Rs. 29,000/deposited in the execution court, nor could that court order it to be paid to the appellants. In any case, so long as the compensation due to respondent 2 has not been ascertained, the appellants claim to the said amount of Rs. 29,000/was premature as the liability of respondent 3, if any, could not until then be ascertained. Further, the order of the Ahmedabad court, which on its confirmation by the High Court of Bombay, became final throws another difficulty in the way of the appellants, disabling them from claiming the said sum of Rs.. In our view, the High Court was right in repelling such a claim by the appellants and rejecting their appeal. That being so, the High Court was also right in directing rateable distribution of that amount amongst the other creditors of respondent 3 who are respondents in the rest of the appeals before us. | 0 | 4,608 | 826 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
in respect of her property left in Pakistan". 14. From the statement of counsel before the Tribunal and the Tribunals said order it would appear (1) that the application was for declaration and adjustment, (2) that the application was in respect of the joint debt of respondents 2 and 3, which must mean the sum of Rs. 40,000/- under the decree for which respondents 2 and 3 were jointly and severally liable, and (3) that that debt was declared to be Rupees 40,000/- but was to be paid in proportion to the compensation which respondent 2 would get on the claim made by her in respect of her property in Pakistan. It is also clear that the relief claimed by respondent 2 was for revision and apportionment of the said sum of Rs. 40,000/- under Sections 21 and 22 of the Act. 15. That being the position, it would be correct to say that the Tribunals order related to Rs. 40,000/-, out of the total decretal amount of Rs. 80,000/- in respect of which respondents 2 and 3 were jointly and severally liable. It would further appear from the statement of counsel before the Tribunal that the liability of respondent 3, as the surety for that amount, was not dealt with by the Tribunal, and therefore, remained unaffected. 16. Since it would appear that the application was in respect of the debt jointly payable by respondents 2 and 3, i.e., in respect of Rs. 40,000/- only, we are not concerned in these appeals with the rest of the amount of Rs. 40,000/- for which respondents 1 and 2 only were liable. The amount of Rs. 29,000/- deposited in the executing court in Delhi on behalf of respondent 3 was obviously the balance due by respondent 3 in respect of his liability as the surety for Rs. 40,000/-, the appellants having already realised Rs. 11,000/- from him. From the order of the Tribunal, dated June 29, 1953, it is clear that it was made under sections 21 and 22 of the Act. That order became final and binding on the appellants as no appeal provided under the Act was ever filed against it by them. 17. Under S. 22 of the Act, it is the duty of the Tribunal, where a debt is due from a displaced debtor jointly with another person, to apportion the liability between them according to the rules therein laid down. Under clause (d) of Section 22, if one joint debtor is a displaced person and another is not, the sum apportioned to the non-displaced person shall not be deemed to be a debt within the meaning of the Act, and therefore, the creditor may in respect of such a debt seek any remedy open to him in a civil court or otherwise. Therefore, the appellants had the right to proceed in execution against respondent 3 in respect of his liability as the surety for 40,000/-. But his liability as such surety was co-extensive with the liability of respondents 1 and 2, the principal debtors, and could not exceed their liability. This principle is incorporated in cl. (g) of S. 22, which lays down that where the relationship between joint debtors is that of principal and surety, nothing contained in the Act shall prevent the institution of a suit for the recovery of the debt against the surety, but no decree shall be passed in such a suit for an amount in excess of the amount decreed or which can be decreed against the principal debtor in accordance with the provisions of the Act. 18. The position is thus clear that the appellants could not recover any amount from respondent 3 in excess of the amount claimable by them from respondents 1 and 2. No doubt, the Tribunals order had declared the joint debt to be Rs. 40,000/-, but it also provided that respondent 2 had to pay that amount in proportion to the compensation which she would receive under her claim in lieu of the property left by her in Pakistan. The amount recoverable from respondent 3 could not exceed that amount by reason of S. 22 (g) as also the principle that the liability of a surety is co-extensive with that of the principal debtor. It has not been the case of the appellants during any stage of these proceedings that the compensation payable to respondent 2 has so far been fixed or ascertained. So long as that has not been done, the extent of the liability of respondent 3 as the surety also cannot be fixed. In any event, since the liability of respondent 2, as the principal debtor, has been made payable from out of the compensation recoverable by her and in proportion to such compensation, the Tribunals order has superseded the decree at least as regards Rs. 40,000/- payable jointly and severally by respondents 2 and 3 thereunder. That order having provided (1) that the amount recoverable would be in proportion to the compensation, and (2) that it would be recovered from that compensation, the appellant could not claim Rs. 29,000/- deposited in the execution court, nor could that court order it to be paid to the appellants. In any case, so long as the compensation due to respondent 2 has not been ascertained, the appellants claim to the said amount of Rs. 29,000/- was premature as the liability of respondent 3, if any, could not until then be ascertained. Further, the order of the Ahmedabad court, which on its confirmation by the High Court of Bombay, became final throws another difficulty in the way of the appellants, disabling them from claiming the said sum of Rs. 29,000/-. In our view, the High Court was right in repelling such a claim by the appellants and rejecting their appeal. That being so, the High Court was also right in directing rateable distribution of that amount amongst the other creditors of respondent 3 who are respondents in the rest of the appeals before us.
### Response:
0
### Explanation:
On a reading of this order, there can be no doubt that the application for declaration and adjustment by respondent 2 was in respect of Rs. 40,000/jointly due by her as the principal debtor and respondent 3 as the guarantor and that it was that debt which the said order adjusted in the manner aforesaid, namely, that the amount recoverable by the appellants would be in proportion to the compensation which respondent 2 would get under a claim lodged by her in lieu of the property left by her in PakistanThis statement clearly means that the application was in respect of the amount of Rs. 40,000/under the said decree for which respondents 1 and 2, as the principal debtors and respondent 3, as the surety, were jointly and severally liable. The order then states that the said debt was liable to be "revised and apportioned" under Ss. 21 and 22 of the Act. Lastly, it says that in accordance with the compromise between the parties "it is hereby declared and ordered that Rs. 40,000/are due from the applicant (respondent 2 herein) to Lakhi Ram Ram Dass respondent (the appellants herein) and that respondent will be entitled to recover the sum as first charge from and in proportion of the compensation which the applicant will get on account of the claim preferred by her in respect of her property left in Pakistan"15. That being the position, it would be correct to say that the Tribunals order related to Rs., out of the total decretal amount of Rs. 80,000/in respect of which respondents 2 and 3 were jointly and severally liable. It would further appear from the statement of counsel before the Tribunal that the liability of respondent 3, as the surety for that amount, was not dealt with by the Tribunal, and therefore, remained unaffectedTherefore, the appellants had the right to proceed in execution against respondent 3 in respect of his liability as the surety for. But his liability as such surety wase with the liability of respondents 1 and 2, the principal debtors, and could not exceed their liability18. The position is thus clear that the appellants could not recover any amount from respondent 3 in excess of the amount claimable by them from respondents 1 and 2. No doubt, the Tribunals order had declared the joint debt to be Rs., but it also provided that respondent 2 had to pay that amount in proportion to the compensation which she would receive under her claim in lieu of the property left by her in Pakistan. The amount recoverable from respondent 3 could not exceed that amount by reason of S. 22 (g) as also the principle that the liability of a surety ise with that of the principal debtor. It has not been the case of the appellants during any stage of these proceedings that the compensation payable to respondent 2 has so far been fixed or ascertained. So long as that has not been done, the extent of the liability of respondent 3 as the surety also cannot be fixed. In any event, since the liability of respondent 2, as the principal debtor, has been made payable from out of the compensation recoverable by her and in proportion to such compensation, the Tribunals order has superseded the decree at least as regards Rs. 40,000/payable jointly and severally by respondents 2 and 3 thereunder. That order having provided (1) that the amount recoverable would be in proportion to the compensation, and (2) that it would be recovered from that compensation, the appellant could not claim Rs. 29,000/deposited in the execution court, nor could that court order it to be paid to the appellants. In any case, so long as the compensation due to respondent 2 has not been ascertained, the appellants claim to the said amount of Rs. 29,000/was premature as the liability of respondent 3, if any, could not until then be ascertained. Further, the order of the Ahmedabad court, which on its confirmation by the High Court of Bombay, became final throws another difficulty in the way of the appellants, disabling them from claiming the said sum of Rs.. In our view, the High Court was right in repelling such a claim by the appellants and rejecting their appeal. That being so, the High Court was also right in directing rateable distribution of that amount amongst the other creditors of respondent 3 who are respondents in the rest of the appeals before us.
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Bishun Narain Mishra Vs. State Of Uttar Pradesh And Others | superannuation was held by the majority in Moti Ram Dekas case, AIR 1964 SC 600 , as out of the application of Article 311. We have not been shown any provision which takes away the power of Government to increase or reduce the age of superannuation and, therefore, as the rule in question only dealt with the age of superannuation and the appellant had to retire because of the reduction in the age of superannuation it cannot be said that the termination of his service which thus came about was removal within the meaning of Article 311. The alteration in the circumstances of this case at least cannot be regarded as unreasonable. The argument that the termination of service resulting from change in the age of superannuation amounts to removal within the meaning of Art. 311 and, therefore, the necessary procedure for removal should have been followed is negatived by the very case on which the appellant relies. We, therefore, hold that Art. 311 has no application to the termination of service of the appellant in the present case.6. The next contention on behalf of the appellant is that the rule can be made. As we read the rule we do not find any retrospectively in it. All that the rule provides is that from the date it comes into force the age of retirement would be 55 years. It would, therefore, apply from that date to all Government servants, even though they may have been recruited before May 25, 1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all Government servants even though they were recruited before 1957. But it is urged that the proviso shows that the rule was applied retrospectively. We have already referred to the proviso which lays down that Government servants who had attained the age of 55 years on or before June 17, 1957 and had not attained the age of 58 years on May 25, 1961 would be deemed to have been retained in service after the date of superannuation, namely 55 years. This proviso in our opinion does not make the rule retrospective; it only provides as to how the period of service beyond 55 years should be treated in view of the earlier rule of 1957 which was being changed by the rule of 1961. Further the second order issued on the same day also clearly shows that there was no retrospective operation of the rule for in actual effect no Government servant was retired before the date of the new rule, i.e., May 25, 1961 and all of them were continued in service up to December 31, 1961 except those who completed the age of 58 years between May 25, 1961 and December 31, 1961 and were therefore, to retire on reaching the age of superannuation according to the old rule. We are, therefore of opinion that the new rule reducing the age of retirement from 58 years to 55 years cannot be said to be retrospective. The proviso to the new rule and the second notification are only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule. The new rule, therefore, cannot be struck down on the ground that it is retrospective in operation.7. The last argument that has been urged is, that the new rule is discriminatory as different public servants have in effect been retired at different ages. We see no force in this contention either. So far as the rule is concerned it applies equally to all public servants and fixes the age of retirement at 55 years. There is no discrimination in the rule itself. It is, however, urged that the second notification by which all public servants above the age of 55 years were required to retire on December 31, 1961 except those new who completed the age of 58 years between May 25, 1961 and December 31, 1961 shows that various public servants were retired at various ages ranging from 55 years and one day to upto 58 years. That certainly is the effect of the second order. But it is remarkable that the order also fixed the same date of retirement namely December 31, 1961 in the case of all public servants who had completed the age of 55 years but not the age of 58 years before December 31, 1961. In this respect also, therefore, there was no discrimination and all public servants who had completed the age of 55 years which was being introduced as the age of superannuation by the new rule by way of reduction were ordered to retire on the same date, namely, December 31, 1961. The result of this seems to be that the affected public servants retired at different ages. But this was not because they retired at different ages but because their services were retained for different periods after the age of fifty-five. Now it cannot be urged that if Government decides to retain the services of some public servants after the age of retirement it must retain every public servant for the same length of time. The retention of public servants after the period of retirement depends upon their efficiency and the exigencies of public service, and in the present case the difference in the period of retention has arisen on account of exigencies of public service. We are, therefore, of opinion that the second notification of May 25, 1961 on which reliance is placed to prove discrimination is really not discriminatory, for it has treated all public servants alike and fixed December 31, 1961 as the date of retirement for those who had completed 55 years but not 58 years up to December 31, 1961. The challenge, therefore, to the two notifications on the basis of Art. 14 must fail. | 0[ds]We have not been shown any provision which takes away the power of Government to increase or reduce the age of superannuation and, therefore, as the rule in question only dealt with the age of superannuation and the appellant had to retire because of the reduction in the age of superannuation it cannot be said that the termination of his service which thus came about was removal within the meaning of Article 311. The alteration in the circumstances of this case at least cannot be regarded as unreasonable. The argument that the termination of service resulting from change in the age of superannuation amounts to removal within the meaning of Art. 311 and, therefore, the necessary procedure for removal should have been followed is negatived by the very case on which the appellant relies. We, therefore, hold that Art. 311 has no application to the termination of service of the appellant in the presentwe read the rule we do not find any retrospectively in it. All that the rule provides is that from the date it comes into force the age of retirement would be 55 years. It would, therefore, apply from that date to all Government servants, even though they may have been recruited before May 25, 1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all Government servants even though they were recruited before 1957. But it is urged that the proviso shows that the rule was applied retrospectively. We have already referred to the proviso which lays down that Government servants who had attained the age of 55 years on or before June 17, 1957 and had not attained the age of 58 years on May 25, 1961 would be deemed to have been retained in service after the date of superannuation, namely 55 years. This proviso in our opinion does not make the rule retrospective; it only provides as to how the period of service beyond 55 years should be treated in view of the earlier rule of 1957 which was being changed by the rule of 1961. Further the second order issued on the same day also clearly shows that there was no retrospective operation of the rule for in actual effect no Government servant was retired before the date of the new rule, i.e., May 25, 1961 and all of them were continued in service up to December 31, 1961 except those who completed the age of 58 years between May 25, 1961 and December 31, 1961 and were therefore, to retire on reaching the age of superannuation according to the old rule. We are, therefore of opinion that the new rule reducing the age of retirement from 58 years to 55 years cannot be said to be retrospective. The proviso to the new rule and the second notification are only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule. The new rule, therefore, cannot be struck down on the ground that it is retrospective insee no force in this contention either. So far as the rule is concerned it applies equally to all public servants and fixes the age of retirement at 55 years. There is no discrimination in the rule itself. It is, however, urged that the second notification by which all public servants above the age of 55 years were required to retire on December 31, 1961 except those new who completed the age of 58 years between May 25, 1961 and December 31, 1961 shows that various public servants were retired at various ages ranging from 55 years and one day to upto 58 years. That certainly is the effect of the second order. But it is remarkable that the order also fixed the same date of retirement namely December 31, 1961 in the case of all public servants who had completed the age of 55 years but not the age of 58 years before December 31, 1961. In this respect also, therefore, there was no discrimination and all public servants who had completed the age of 55 years which was being introduced as the age of superannuation by the new rule by way of reduction were ordered to retire on the same date, namely, December 31, 1961. The result of this seems to be that the affected public servants retired at different ages. But this was not because they retired at different ages but because their services were retained for different periods after the age of fifty-five. Now it cannot be urged that if Government decides to retain the services of some public servants after the age of retirement it must retain every public servant for the same length of time. The retention of public servants after the period of retirement depends upon their efficiency and the exigencies of public service, and in the present case the difference in the period of retention has arisen on account of exigencies of public service. We are, therefore, of opinion that the second notification of May 25, 1961 on which reliance is placed to prove discrimination is really not discriminatory, for it has treated all public servants alike and fixed December 31, 1961 as the date of retirement for those who had completed 55 years but not 58 years up to December 31, 1961. The challenge, therefore, to the two notifications on the basis of Art. 14 must fail. | 0 | 2,386 | 1,011 | ### 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:
superannuation was held by the majority in Moti Ram Dekas case, AIR 1964 SC 600 , as out of the application of Article 311. We have not been shown any provision which takes away the power of Government to increase or reduce the age of superannuation and, therefore, as the rule in question only dealt with the age of superannuation and the appellant had to retire because of the reduction in the age of superannuation it cannot be said that the termination of his service which thus came about was removal within the meaning of Article 311. The alteration in the circumstances of this case at least cannot be regarded as unreasonable. The argument that the termination of service resulting from change in the age of superannuation amounts to removal within the meaning of Art. 311 and, therefore, the necessary procedure for removal should have been followed is negatived by the very case on which the appellant relies. We, therefore, hold that Art. 311 has no application to the termination of service of the appellant in the present case.6. The next contention on behalf of the appellant is that the rule can be made. As we read the rule we do not find any retrospectively in it. All that the rule provides is that from the date it comes into force the age of retirement would be 55 years. It would, therefore, apply from that date to all Government servants, even though they may have been recruited before May 25, 1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all Government servants even though they were recruited before 1957. But it is urged that the proviso shows that the rule was applied retrospectively. We have already referred to the proviso which lays down that Government servants who had attained the age of 55 years on or before June 17, 1957 and had not attained the age of 58 years on May 25, 1961 would be deemed to have been retained in service after the date of superannuation, namely 55 years. This proviso in our opinion does not make the rule retrospective; it only provides as to how the period of service beyond 55 years should be treated in view of the earlier rule of 1957 which was being changed by the rule of 1961. Further the second order issued on the same day also clearly shows that there was no retrospective operation of the rule for in actual effect no Government servant was retired before the date of the new rule, i.e., May 25, 1961 and all of them were continued in service up to December 31, 1961 except those who completed the age of 58 years between May 25, 1961 and December 31, 1961 and were therefore, to retire on reaching the age of superannuation according to the old rule. We are, therefore of opinion that the new rule reducing the age of retirement from 58 years to 55 years cannot be said to be retrospective. The proviso to the new rule and the second notification are only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule. The new rule, therefore, cannot be struck down on the ground that it is retrospective in operation.7. The last argument that has been urged is, that the new rule is discriminatory as different public servants have in effect been retired at different ages. We see no force in this contention either. So far as the rule is concerned it applies equally to all public servants and fixes the age of retirement at 55 years. There is no discrimination in the rule itself. It is, however, urged that the second notification by which all public servants above the age of 55 years were required to retire on December 31, 1961 except those new who completed the age of 58 years between May 25, 1961 and December 31, 1961 shows that various public servants were retired at various ages ranging from 55 years and one day to upto 58 years. That certainly is the effect of the second order. But it is remarkable that the order also fixed the same date of retirement namely December 31, 1961 in the case of all public servants who had completed the age of 55 years but not the age of 58 years before December 31, 1961. In this respect also, therefore, there was no discrimination and all public servants who had completed the age of 55 years which was being introduced as the age of superannuation by the new rule by way of reduction were ordered to retire on the same date, namely, December 31, 1961. The result of this seems to be that the affected public servants retired at different ages. But this was not because they retired at different ages but because their services were retained for different periods after the age of fifty-five. Now it cannot be urged that if Government decides to retain the services of some public servants after the age of retirement it must retain every public servant for the same length of time. The retention of public servants after the period of retirement depends upon their efficiency and the exigencies of public service, and in the present case the difference in the period of retention has arisen on account of exigencies of public service. We are, therefore, of opinion that the second notification of May 25, 1961 on which reliance is placed to prove discrimination is really not discriminatory, for it has treated all public servants alike and fixed December 31, 1961 as the date of retirement for those who had completed 55 years but not 58 years up to December 31, 1961. The challenge, therefore, to the two notifications on the basis of Art. 14 must fail.
### Response:
0
### Explanation:
We have not been shown any provision which takes away the power of Government to increase or reduce the age of superannuation and, therefore, as the rule in question only dealt with the age of superannuation and the appellant had to retire because of the reduction in the age of superannuation it cannot be said that the termination of his service which thus came about was removal within the meaning of Article 311. The alteration in the circumstances of this case at least cannot be regarded as unreasonable. The argument that the termination of service resulting from change in the age of superannuation amounts to removal within the meaning of Art. 311 and, therefore, the necessary procedure for removal should have been followed is negatived by the very case on which the appellant relies. We, therefore, hold that Art. 311 has no application to the termination of service of the appellant in the presentwe read the rule we do not find any retrospectively in it. All that the rule provides is that from the date it comes into force the age of retirement would be 55 years. It would, therefore, apply from that date to all Government servants, even though they may have been recruited before May 25, 1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all Government servants even though they were recruited before 1957. But it is urged that the proviso shows that the rule was applied retrospectively. We have already referred to the proviso which lays down that Government servants who had attained the age of 55 years on or before June 17, 1957 and had not attained the age of 58 years on May 25, 1961 would be deemed to have been retained in service after the date of superannuation, namely 55 years. This proviso in our opinion does not make the rule retrospective; it only provides as to how the period of service beyond 55 years should be treated in view of the earlier rule of 1957 which was being changed by the rule of 1961. Further the second order issued on the same day also clearly shows that there was no retrospective operation of the rule for in actual effect no Government servant was retired before the date of the new rule, i.e., May 25, 1961 and all of them were continued in service up to December 31, 1961 except those who completed the age of 58 years between May 25, 1961 and December 31, 1961 and were therefore, to retire on reaching the age of superannuation according to the old rule. We are, therefore of opinion that the new rule reducing the age of retirement from 58 years to 55 years cannot be said to be retrospective. The proviso to the new rule and the second notification are only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule. The new rule, therefore, cannot be struck down on the ground that it is retrospective insee no force in this contention either. So far as the rule is concerned it applies equally to all public servants and fixes the age of retirement at 55 years. There is no discrimination in the rule itself. It is, however, urged that the second notification by which all public servants above the age of 55 years were required to retire on December 31, 1961 except those new who completed the age of 58 years between May 25, 1961 and December 31, 1961 shows that various public servants were retired at various ages ranging from 55 years and one day to upto 58 years. That certainly is the effect of the second order. But it is remarkable that the order also fixed the same date of retirement namely December 31, 1961 in the case of all public servants who had completed the age of 55 years but not the age of 58 years before December 31, 1961. In this respect also, therefore, there was no discrimination and all public servants who had completed the age of 55 years which was being introduced as the age of superannuation by the new rule by way of reduction were ordered to retire on the same date, namely, December 31, 1961. The result of this seems to be that the affected public servants retired at different ages. But this was not because they retired at different ages but because their services were retained for different periods after the age of fifty-five. Now it cannot be urged that if Government decides to retain the services of some public servants after the age of retirement it must retain every public servant for the same length of time. The retention of public servants after the period of retirement depends upon their efficiency and the exigencies of public service, and in the present case the difference in the period of retention has arisen on account of exigencies of public service. We are, therefore, of opinion that the second notification of May 25, 1961 on which reliance is placed to prove discrimination is really not discriminatory, for it has treated all public servants alike and fixed December 31, 1961 as the date of retirement for those who had completed 55 years but not 58 years up to December 31, 1961. The challenge, therefore, to the two notifications on the basis of Art. 14 must fail.
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Mukunda Bore Vs. Bangshidhar Buragohain & Others | the extent of Rs. 5, 900; and that this money was utilised towards the amount which was paid to the former lessee at the time of taking possession by the appellant. It is further pointed out that at the time of arguments before the Board, the position taken by Mukunda Bore was that this amount came from Savings Bank Account No. 8648, which was evidently false. The Board pronounced its judgment about three weeks after the hearing of arguments. Even during this interval, it is emphasised, Mukunda Bore did not produce the passbook issued by the State Bank of India, Jorhat, to the appellant’s father which could show that a sum of Rs. 5, 900 was drawn from that account with the bank. No affidavit was filed to explain the source whence this amount of Rs. 6, 905.07 paid to the former lessee, came. maintains that in the circumstances, it cannot be said that the finding of the Board to the effect that this money did not come from bona fide sources and that Mukunda Bore did not have the necessary financial capacity to take the settlement, could not be said to be based on no evidence whatever. Lastly, it is submitted that the term of the settlement will expire shortly on March 31, 1980, and from that point of view even if the Board has committed some irregularities or failed to discuss all the evidence, then also the court should not, on principles of sound practice, disturb the settlement in the exercise of its special jurisdiction under Article 226 of the Constitution.16. While on facts the order of the Board under appeal is not impeccable, we must remember that under Article 226 of the Constitution, a finding of fact of a domestic tribunal cannot be interfered with. The High Court in the exercise of its special jurisdiction does not act as a court of appeal. It interferes only when there is a jurisdictional error apparent on the face of the record committed by the domestic tribunal. Such is not the case here. It is true that a finding based on no evidence or purely on surmises and conjectures or which is manifestly against the basic principles of natural justice, may be said to suffer from an error of law. In the instant case, the finding of the Board that the appellant does not possess the necessary financial capacity, is largely a finding of fact. Under Rule 206(2) of the Assam Excise Rules, an applicant for settlement of a shop is required to give full information regarding his financial capacity in the tender. Such information must include the details of sources of finance, cash in hand, bank balance, security assets, etc. Then, such information is verified by the Inquiry Officer.17. In the case before us, the appellant admittedly did not give information regarding the account with the State Bank of India, Jorhat, wherein his father had a balance of Rs. 5, 900. He did not disclose this information even during the inquiry to the Inquiry Officer or to the Primary Authority at any stage. Even before the Board, he did not produce his father’s passbook relating to that account with the State Bank of India, Jorhat, to show that the amount overdrawn from this account by the appellant’s father was used towards the bulk of the payment of Rs. 6, 905.07 to the former lessee of the shop. In this connection, it may be noted that the orders were pronounced about three weeks after the hearing of final arguments by the Board. At the time of arguments, the appellant must have become aware that the source from which he paid the amount of Rs. 6, 905.07 to the former lessee was being questioned. Instead of disclosing the true source of the amount, his counsel appears to have take the stand that this amount came from Account No. 8648, which, on the face of the entries in that account, was manifestly incorrect. It is true that the appellant produced a letter, dated June 11, 1979, from the Agent of the State Bank of India, showing that his father’s account with that bank stood overdrawn to the extent of Rs. 5, 900 on the date. It is true that the Board has not discussed the evidentiary value of this letter. But without the production of the passbook relating to that bank account, this letter did not by itself furnish adequate information with regard to the source of the entire amount of Rs. 6, 905.07 which the appellant had to pay the former lessee while taking possession of the shop. The failure on the part of the Board therefore, to discuss this letter did not amount to an error of law.18. It is further correct that the Board did not, in terms, record a finding that the appellant was merely a figure-head or a benamidar, while the real beneficiary was somebody else who was not otherwise eligible for taking the settlement. It was desirable for the Board to have recorded a clear finding against the appellant so as to set aside the settlement in his favour on any of the grounds mentioned in Rule 211. But this does not vitiate its order, because such a ground is implicit in the finding by the Board that the money paid to the former lessee by the appellant to get possession of the shop did not come from bona fide sources. At the highest, all that can be said, is that if the High Court or this Court were in the position of the Board as an appellate authority, it might have upheld the settlement in favour of the appellant who was an educated, unemployed youth belonging to the "more backward community". This, however, as already observed, is not a ground for setting aside the judgment of the Board in the exercise of the writ jurisdiction, particularly when the period of settlement is about to run out in a couple of months by March 31, 1980. | 0[ds]It is true that a finding based on no evidence or purely on surmises and conjectures or which is manifestly against the basic principles of natural justice, may be said to suffer from an error of law. In the instant case, the finding of the Board that the appellant does not possess the necessary financial capacity, is largely a finding of fact. Under Rule 206(2) of the Assam Excise Rules, an applicant for settlement of a shop is required to give full information regarding his financial capacity in the tender. Such information must include the details of sources of finance, cash in hand, bank balance, security assets, etc. Then, such information is verified by the Inquiry Officer.17. In the case before us, the appellant admittedly did not give information regarding the account with the State Bank of India, Jorhat, wherein his father had a balance of Rs. 5, 900. He did not disclose this information even during the inquiry to the Inquiry Officer or to the Primary Authority at any stage. Even before the Board, he did not produce hispassbook relating to that account with the State Bank of India, Jorhat, to show that the amount overdrawn from this account by thefather was used towards the bulk of the payment of Rs. 6, 905.07 to the former lessee of the shop. In this connection, it may be noted that the orders were pronounced about three weeks after the hearing of final arguments by the Board. At the time of arguments, the appellant must have become aware that the source from which he paid the amount of Rs. 6, 905.07 to the former lessee was being questioned. Instead of disclosing the true source of the amount, his counsel appears to have take the stand that this amount came from Account No. 8648, which, on the face of the entries in that account, was manifestly incorrect. It is true that the appellant produced a letter, dated June 11, 1979, from the Agent of the State Bank of India, showing that hisaccount with that bank stood overdrawn to the extent of Rs. 5, 900 on the date. It is true that the Board has not discussed the evidentiary value of this letter. But without the production of the passbook relating to that bank account, this letter did not by itself furnish adequate information with regard to the source of the entire amount of Rs. 6, 905.07 which the appellant had to pay the former lessee while taking possession of the shop. The failure on the part of the Board therefore, to discuss this letter did not amount to an error of law.18. It is further correct that the Board did not, in terms, record a finding that the appellant was merely aor a benamidar, while the real beneficiary was somebody else who was not otherwise eligible for taking the settlement. It was desirable for the Board to have recorded a clear finding against the appellant so as to set aside the settlement in his favour on any of the grounds mentioned in Rule 211. But this does not vitiate its order, because such a ground is implicit in the finding by the Board that the money paid to the former lessee by the appellant to get possession of the shop did not come from bona fide sources. At the highest, all that can be said, is that if the High Court or this Court were in the position of the Board as an appellate authority, it might have upheld the settlement in favour of the appellant who was an educated, unemployed youth belonging to the "more backward community". This, however, as already observed, is not a ground for setting aside the judgment of the Board in the exercise of the writ jurisdiction, particularly when the period of settlement is about to run out in a couple of months by March 31, 1980. | 0 | 2,735 | 729 | ### 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:
the extent of Rs. 5, 900; and that this money was utilised towards the amount which was paid to the former lessee at the time of taking possession by the appellant. It is further pointed out that at the time of arguments before the Board, the position taken by Mukunda Bore was that this amount came from Savings Bank Account No. 8648, which was evidently false. The Board pronounced its judgment about three weeks after the hearing of arguments. Even during this interval, it is emphasised, Mukunda Bore did not produce the passbook issued by the State Bank of India, Jorhat, to the appellant’s father which could show that a sum of Rs. 5, 900 was drawn from that account with the bank. No affidavit was filed to explain the source whence this amount of Rs. 6, 905.07 paid to the former lessee, came. maintains that in the circumstances, it cannot be said that the finding of the Board to the effect that this money did not come from bona fide sources and that Mukunda Bore did not have the necessary financial capacity to take the settlement, could not be said to be based on no evidence whatever. Lastly, it is submitted that the term of the settlement will expire shortly on March 31, 1980, and from that point of view even if the Board has committed some irregularities or failed to discuss all the evidence, then also the court should not, on principles of sound practice, disturb the settlement in the exercise of its special jurisdiction under Article 226 of the Constitution.16. While on facts the order of the Board under appeal is not impeccable, we must remember that under Article 226 of the Constitution, a finding of fact of a domestic tribunal cannot be interfered with. The High Court in the exercise of its special jurisdiction does not act as a court of appeal. It interferes only when there is a jurisdictional error apparent on the face of the record committed by the domestic tribunal. Such is not the case here. It is true that a finding based on no evidence or purely on surmises and conjectures or which is manifestly against the basic principles of natural justice, may be said to suffer from an error of law. In the instant case, the finding of the Board that the appellant does not possess the necessary financial capacity, is largely a finding of fact. Under Rule 206(2) of the Assam Excise Rules, an applicant for settlement of a shop is required to give full information regarding his financial capacity in the tender. Such information must include the details of sources of finance, cash in hand, bank balance, security assets, etc. Then, such information is verified by the Inquiry Officer.17. In the case before us, the appellant admittedly did not give information regarding the account with the State Bank of India, Jorhat, wherein his father had a balance of Rs. 5, 900. He did not disclose this information even during the inquiry to the Inquiry Officer or to the Primary Authority at any stage. Even before the Board, he did not produce his father’s passbook relating to that account with the State Bank of India, Jorhat, to show that the amount overdrawn from this account by the appellant’s father was used towards the bulk of the payment of Rs. 6, 905.07 to the former lessee of the shop. In this connection, it may be noted that the orders were pronounced about three weeks after the hearing of final arguments by the Board. At the time of arguments, the appellant must have become aware that the source from which he paid the amount of Rs. 6, 905.07 to the former lessee was being questioned. Instead of disclosing the true source of the amount, his counsel appears to have take the stand that this amount came from Account No. 8648, which, on the face of the entries in that account, was manifestly incorrect. It is true that the appellant produced a letter, dated June 11, 1979, from the Agent of the State Bank of India, showing that his father’s account with that bank stood overdrawn to the extent of Rs. 5, 900 on the date. It is true that the Board has not discussed the evidentiary value of this letter. But without the production of the passbook relating to that bank account, this letter did not by itself furnish adequate information with regard to the source of the entire amount of Rs. 6, 905.07 which the appellant had to pay the former lessee while taking possession of the shop. The failure on the part of the Board therefore, to discuss this letter did not amount to an error of law.18. It is further correct that the Board did not, in terms, record a finding that the appellant was merely a figure-head or a benamidar, while the real beneficiary was somebody else who was not otherwise eligible for taking the settlement. It was desirable for the Board to have recorded a clear finding against the appellant so as to set aside the settlement in his favour on any of the grounds mentioned in Rule 211. But this does not vitiate its order, because such a ground is implicit in the finding by the Board that the money paid to the former lessee by the appellant to get possession of the shop did not come from bona fide sources. At the highest, all that can be said, is that if the High Court or this Court were in the position of the Board as an appellate authority, it might have upheld the settlement in favour of the appellant who was an educated, unemployed youth belonging to the "more backward community". This, however, as already observed, is not a ground for setting aside the judgment of the Board in the exercise of the writ jurisdiction, particularly when the period of settlement is about to run out in a couple of months by March 31, 1980.
### Response:
0
### Explanation:
It is true that a finding based on no evidence or purely on surmises and conjectures or which is manifestly against the basic principles of natural justice, may be said to suffer from an error of law. In the instant case, the finding of the Board that the appellant does not possess the necessary financial capacity, is largely a finding of fact. Under Rule 206(2) of the Assam Excise Rules, an applicant for settlement of a shop is required to give full information regarding his financial capacity in the tender. Such information must include the details of sources of finance, cash in hand, bank balance, security assets, etc. Then, such information is verified by the Inquiry Officer.17. In the case before us, the appellant admittedly did not give information regarding the account with the State Bank of India, Jorhat, wherein his father had a balance of Rs. 5, 900. He did not disclose this information even during the inquiry to the Inquiry Officer or to the Primary Authority at any stage. Even before the Board, he did not produce hispassbook relating to that account with the State Bank of India, Jorhat, to show that the amount overdrawn from this account by thefather was used towards the bulk of the payment of Rs. 6, 905.07 to the former lessee of the shop. In this connection, it may be noted that the orders were pronounced about three weeks after the hearing of final arguments by the Board. At the time of arguments, the appellant must have become aware that the source from which he paid the amount of Rs. 6, 905.07 to the former lessee was being questioned. Instead of disclosing the true source of the amount, his counsel appears to have take the stand that this amount came from Account No. 8648, which, on the face of the entries in that account, was manifestly incorrect. It is true that the appellant produced a letter, dated June 11, 1979, from the Agent of the State Bank of India, showing that hisaccount with that bank stood overdrawn to the extent of Rs. 5, 900 on the date. It is true that the Board has not discussed the evidentiary value of this letter. But without the production of the passbook relating to that bank account, this letter did not by itself furnish adequate information with regard to the source of the entire amount of Rs. 6, 905.07 which the appellant had to pay the former lessee while taking possession of the shop. The failure on the part of the Board therefore, to discuss this letter did not amount to an error of law.18. It is further correct that the Board did not, in terms, record a finding that the appellant was merely aor a benamidar, while the real beneficiary was somebody else who was not otherwise eligible for taking the settlement. It was desirable for the Board to have recorded a clear finding against the appellant so as to set aside the settlement in his favour on any of the grounds mentioned in Rule 211. But this does not vitiate its order, because such a ground is implicit in the finding by the Board that the money paid to the former lessee by the appellant to get possession of the shop did not come from bona fide sources. At the highest, all that can be said, is that if the High Court or this Court were in the position of the Board as an appellate authority, it might have upheld the settlement in favour of the appellant who was an educated, unemployed youth belonging to the "more backward community". This, however, as already observed, is not a ground for setting aside the judgment of the Board in the exercise of the writ jurisdiction, particularly when the period of settlement is about to run out in a couple of months by March 31, 1980.
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Metalman Pipe Manufacturers Company Private Limited Vs. Union of India | PENDSE, J. ( 1 ) THE petitioners No. 1 is a company manufacturing steel pipes and tubes. For manufacture of pipes and tubes the petitioners import boiler Hot Rolled Coils which are used for re-rolling. Import of Hot Rolled Coils was permitted under O. G. L. Appendix X of the relevant Import policy. The company placed an order on February 17, 1984 for supply of 800 metric tonnes of hot Rolled Coils. On February 28, 1984 the company Bombay on August 17, 1984. The company filed a bill of entry and sought clearance under Entry No. 73. 08 of the Customs Tariff act. The entry reads as follows. "iron or steel coils for re-rolling". The rate of duty is 60%. The Department declined to accept the claim and felt that the relevant entry is 73. 13 of the Customs Tariff. Entry 73. 13 reads as follows : "sheets and plates, of iron or steel, hot-rolled or cold-rolled". and the duty payable is 100%. Being aggrieved by the assessment order endorsed on the bill of entry demanding duty under Entry No. 73. 13, the petitioners filed the present petition under article 226 of the Constitution challenging the assessment made by the respondents. ( 2 ) MR. Kantawala, learned counsel appearing on behalf of the petitioners, submitted that when there is a specific entry in respect of iron or steel coils for re-rolling under Heading No. 73. 08, it is not open for the Department to demand duty under 73. 13. The submission of the learned counsel is correct and deserves acceptance. The petitioners have specifically averred that the import of iron or steel coils was for the purpose of re- rolling and the respondents have not filed by return to dispute the correctness of the said averment. Mr. Bulchandani, learned counsel for the Department, submitted that the coils which have been imported are hot rolled or cold rolled and, therefore, Entry No. 73. 13 is attracted. The submissions is not correct. Perusal of notes in chapter 73 of the Customs Tariff indicates that coils for re-rolling means coil semi-finished hot rolled products. A perusal of note (k) unmistakably establishes that the iron or steel coils even if hot rolled or cold rolled would squarely fall within the ambit of Entry 73. 08. Mr. Kantawala also submitted that in respect of import of identical material by M/s. Nagarjuna Steel Limited, the department had permitted clearance under Entry 73. 08. In our judgment, the action of the respondents in assessing the bills of entry under 73. 13 cannot be sustained. | 1[ds]The submissions is not correct. Perusal of notes in chapter 73 of the Customs Tariff indicates that coils forhed hot rolled products. A perusal of note (k) unmistakably establishes that the iron or steel coils even if hot rolled or cold rolled would squarely fall within the ambit of Entry 73. 08.In our judgment, the action of the respondents in assessing the bills of entry under 73. 13 cannot be sustained. | 1 | 491 | 84 | ### 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:
PENDSE, J. ( 1 ) THE petitioners No. 1 is a company manufacturing steel pipes and tubes. For manufacture of pipes and tubes the petitioners import boiler Hot Rolled Coils which are used for re-rolling. Import of Hot Rolled Coils was permitted under O. G. L. Appendix X of the relevant Import policy. The company placed an order on February 17, 1984 for supply of 800 metric tonnes of hot Rolled Coils. On February 28, 1984 the company Bombay on August 17, 1984. The company filed a bill of entry and sought clearance under Entry No. 73. 08 of the Customs Tariff act. The entry reads as follows. "iron or steel coils for re-rolling". The rate of duty is 60%. The Department declined to accept the claim and felt that the relevant entry is 73. 13 of the Customs Tariff. Entry 73. 13 reads as follows : "sheets and plates, of iron or steel, hot-rolled or cold-rolled". and the duty payable is 100%. Being aggrieved by the assessment order endorsed on the bill of entry demanding duty under Entry No. 73. 13, the petitioners filed the present petition under article 226 of the Constitution challenging the assessment made by the respondents. ( 2 ) MR. Kantawala, learned counsel appearing on behalf of the petitioners, submitted that when there is a specific entry in respect of iron or steel coils for re-rolling under Heading No. 73. 08, it is not open for the Department to demand duty under 73. 13. The submission of the learned counsel is correct and deserves acceptance. The petitioners have specifically averred that the import of iron or steel coils was for the purpose of re- rolling and the respondents have not filed by return to dispute the correctness of the said averment. Mr. Bulchandani, learned counsel for the Department, submitted that the coils which have been imported are hot rolled or cold rolled and, therefore, Entry No. 73. 13 is attracted. The submissions is not correct. Perusal of notes in chapter 73 of the Customs Tariff indicates that coils for re-rolling means coil semi-finished hot rolled products. A perusal of note (k) unmistakably establishes that the iron or steel coils even if hot rolled or cold rolled would squarely fall within the ambit of Entry 73. 08. Mr. Kantawala also submitted that in respect of import of identical material by M/s. Nagarjuna Steel Limited, the department had permitted clearance under Entry 73. 08. In our judgment, the action of the respondents in assessing the bills of entry under 73. 13 cannot be sustained.
### Response:
1
### Explanation:
The submissions is not correct. Perusal of notes in chapter 73 of the Customs Tariff indicates that coils forhed hot rolled products. A perusal of note (k) unmistakably establishes that the iron or steel coils even if hot rolled or cold rolled would squarely fall within the ambit of Entry 73. 08.In our judgment, the action of the respondents in assessing the bills of entry under 73. 13 cannot be sustained.
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State of Orissa & Another Vs. Mamata Mohanty | the said percentage.(iii) Their appointments had been approved after a long long time. In some cases after 10-12 years of their initial appointment by the statutory authority i.e. Director of Higher Education.(iv) A candidate becomes eligible to apply for a post only if he fulfils the required minimum benchmark fixed by the rules/advertisement. Thus, none of the respondents could even submit the application what to talk of the appointments.(v) The so-called relaxation by the Utkal University was accorded by passing a routine order applicable to large number of colleges, that too after a lapse of long period i.e. about a decade.(vi) Fixation of eligibility falls within the exclusive domain of the executive and once it has been fixed by the State authorities under the Rules 1974, the question of according relaxation by Utkal University could not arise and, therefore, the order of condonation etc. is nullity.(vii) The relaxation has been granted only by Utkal University though Rule 2(i) of Rules 1974 defined `University means Utkal University, Berhampur University, Sambalpur University and Sri Jagannath Sanskrit Vishwa Vidyalaya.(viii) Granting relaxation at this stage amounts to change of criteria after issuance of advertisement, which is impermissible in law. More so, it is violative of fundamental rights enshrined under Articles 14 and 16 of the Constitution of the similarly situated persons, who did not apply considering themselves to be ineligible for want of required marks.(ix) The exercise of condonation of deficiency had not been exercised by any University other than Utkal University.(x) The post of the teachers i.e. respondents is transferable to any college affiliated to any other University under the Rules 1979.(xi) The power to grant relaxation in eligibility had not been conferred upon any authority, either the University or the State. In absence thereof, such power could not have been exercised.(xii) This Court in Damodar Nayak (supra) has categorically held that a person cannot get the benefit of grant-in-aid unless he completes the deficiency of educational qualification. Further, this Court in Dr. Bhanu Prasad Panda (supra) upheld the termination of services of the appellant therein for not possessing 55% marks in Master Course.(xiii) The aforesaid two judgments in Damodar Nayak (supra) and Dr. Bhanu Prasad Panda (supra), could not be brought to the notice of either the High Court or this Court while dealing with the issue. Special leave petition in the case of Kalidas Mohapatra & Ors. (supra) has been dealt with without considering the requirement of law merely making the reference to Circular dated 6.11.1990, which was not the first document ever issued in respect of eligibility. Thus, all the judgments and orders passed by the High Court as well as by this Court cited and relied upon by the respondents are held to be not of a binding nature. (Per in curiam)(xiv) In case a person cannot get the benefit of grant-in-aid scheme unless he completes the deficiency of educational qualification, question of grant of UGC pay scale does not arise.(xv) The cases had been entertained and relief had been granted by the High Court without considering the issue of delay and laches merely placing reliance upon earlier judgments obtained by diligent persons approaching the courts within a reasonable time.(xvi) The authority passed illegal orders in contravention of the constitutional provisions arbitrarily without any explanation whatsoever polluting the entire education system of the State, ignoring the purpose of grant-in-aid scheme itself that it has been so provided to maintain the standard of education.(xvii) The High Court granted relief in some cases which had not even been asked for as in some cases the UGC pay scale had been granted with effect from 1.6.1984, i.e., the date prior to 1.1.1986 though the same relief could not have been granted. Thus, it clearly makes out a case of deciding a case without any application of mind.(xviii) In some cases the UGC pay scale has been granted by the High Court prior to the date of according the benefit of grant-in-aid scheme to the concerned teachers which was not permissible in law in view of the law laid down by this Court in Damodar Nayak (supra).(xix) The grievance of the respondents that not upholding the orders passed by the High Court in their favour would amount to a hostile discrimination is not worth acceptance for the reason that Article 14 of the Constitution envisages only positive equality.(xx) Concept of adverse possession of lien on post or holding over are inapplicable in service jurisprudence.(xxi) The submission on behalf of the respondents that Government orders/circulars/letters have been complied with, therefore, no interference is called for, is preposterous for the simple reason that such orders/circulars/letters being violative of statutory provisions and constitutional mandate are just to be ignored in terms of the judgment of this Court in Ram Ganesh Tripathi (supra). 47. In view of the above, it stands crystal clear that a teacher who had been appointed without possessing the requisite qualification at initial stage cannot get the benefit of grant-in-aid scheme unless he acquires the additional qualification and, therefore, question of grant of UGC pay scale would not arise in any circumstance unless such teacher acquires the additional qualification making him eligible for the benefit of grant-in-aid scheme. The cumulative effect therefore comes to that such teacher will not be entitled to claim the UGC pay scale unless he acquires the higher qualification i.e. M.Phil/Ph.D.48. In the facts and circumstances of the case, we feel that terminating the services of those who had been appointed illegally and/or withdrawing the benefits of grant-in-aid scheme of those who had not completed the deficiency in eligibility/educational qualification or withdrawing the benefit thereof from those who had been granted from the date prior to completing the deficiency, may not be desirable as a long period has elapsed. So far as the grant of UGC pay scale is concerned, it cannot be granted prior to the date of acquisition of higher qualification. In view of the above, the impugned judgment/order cannot be sustained in the eyes of law. | 1[ds]11. Considering the rival submissions made by learned counsel for the parties, we are of the view that as the questions raised hereinabove had never been considered by any of the courts and involve substantial questions of law of public importance, the cases require proper adjudication.In view of the above, it is evident that education is necessary to develop the personality of a person as a whole and in totality as it provides the process of training and acquiring the knowledge, skills, developing mind and character by formal schooling. Therefore, it is necessary to maintain a high academic standard and academic discipline along with academic rigour for the progress of a nation. Democracy depends for its own survival on a high standard of vocational and professional education. Paucity of funds cannot be a ground for the State not to provide quality education to its future citizens. It is for this reason that in order to maintain the standard of education the State Government provides grant-in-aid to private schools to ensure the smooth running of the institution so that the standard of teaching may not suffer for want of funds. Article 21A has been added by amending our Constitution with a view to facilitate the children to get proper and good quality education. However, the quality of education would depend on various factors but the most relevant of them is excellence of teaching staff. In view thereof, quality of teaching staff cannot be compromised. The selection of the most suitable persons is essential in order to maintain excellence and the standard of teaching in the institution. It is not permissible for the State that while controlling the education it may impinge the standard of education. It is, in fact, for this reason that norms of admission in institutions have to be adhered to strictly. Admissions in mid academic sessions are not permitted to maintain the par excellence of education.At one time this Court had been of the view that calling the names from Employment Exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television as merely calling the names from the Employment Exchange does not meet the requirement of the said Article of the Constitution.Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin.Needless to say that Limitation Act 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but the High Court for some unexplained reason granted the relief w.e.f. 1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.34. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time.Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted." Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ.It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief.We are fully alive of the object and purpose of according recognition and affiliation to educational institutions. It is the educational authorities of the State which grant recognition to a Committee of Management for opening or running an educational institution. Affiliation is granted by the particular University or Board for undertaking the examination of the students of that college for awarding degrees and certificates. Therefore, while granting the recognition and affiliation even for non-governmental and non-aided private colleges, it is mandatory to adhere to the conditions imposed by them, which also include the minimum eligibility for appointment of teaching staff. The authority at the time of granting approval has to apply its mind to find out whether a person possessing the minimum eligibility has been appointed. In the instant case, it appears to be a clear cut case of arbitrariness which cannot be approved.The rule of law inhibits arbitrary action and also makes it liable to be invalidated. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even give an impression of bias, favouritism and nepotism."Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. The Courts have developed` this principle in relaxation of the rule of stare decisis. Thus the "quotable in law", is avoided and ignored if it is rendered, in ignoratium of a Statute or other binding authority.In view of the above, it stands crystal clear that a teacher who had been appointed without possessing the requisite qualification at initial stage cannot get the benefit of grant-in-aid scheme unless he acquires the additional qualification and, therefore, question of grant of UGC pay scale would not arise in any circumstance unless such teacher acquires the additional qualification making him eligible for the benefit of grant-in-aid scheme. The cumulative effect therefore comes to that such teacher will not be entitled to claim the UGC pay scale unless he acquires the higher qualification i.e. M.Phil/Ph.D.48. In the facts and circumstances of the case, we feel that terminating the services of those who had been appointed illegally and/or withdrawing the benefits of grant-in-aid scheme of those who had not completed the deficiency in eligibility/educational qualification or withdrawing the benefit thereof from those who had been granted from the date prior to completing the deficiency, may not be desirable as a long period has elapsed. So far as the grant of UGC pay scale is concerned, it cannot be granted prior to the date of acquisition of higher qualification. In view of the above, the impugned judgment/order cannot be sustained in the eyes of law. | 1 | 9,861 | 1,718 | ### Instruction:
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the said percentage.(iii) Their appointments had been approved after a long long time. In some cases after 10-12 years of their initial appointment by the statutory authority i.e. Director of Higher Education.(iv) A candidate becomes eligible to apply for a post only if he fulfils the required minimum benchmark fixed by the rules/advertisement. Thus, none of the respondents could even submit the application what to talk of the appointments.(v) The so-called relaxation by the Utkal University was accorded by passing a routine order applicable to large number of colleges, that too after a lapse of long period i.e. about a decade.(vi) Fixation of eligibility falls within the exclusive domain of the executive and once it has been fixed by the State authorities under the Rules 1974, the question of according relaxation by Utkal University could not arise and, therefore, the order of condonation etc. is nullity.(vii) The relaxation has been granted only by Utkal University though Rule 2(i) of Rules 1974 defined `University means Utkal University, Berhampur University, Sambalpur University and Sri Jagannath Sanskrit Vishwa Vidyalaya.(viii) Granting relaxation at this stage amounts to change of criteria after issuance of advertisement, which is impermissible in law. More so, it is violative of fundamental rights enshrined under Articles 14 and 16 of the Constitution of the similarly situated persons, who did not apply considering themselves to be ineligible for want of required marks.(ix) The exercise of condonation of deficiency had not been exercised by any University other than Utkal University.(x) The post of the teachers i.e. respondents is transferable to any college affiliated to any other University under the Rules 1979.(xi) The power to grant relaxation in eligibility had not been conferred upon any authority, either the University or the State. In absence thereof, such power could not have been exercised.(xii) This Court in Damodar Nayak (supra) has categorically held that a person cannot get the benefit of grant-in-aid unless he completes the deficiency of educational qualification. Further, this Court in Dr. Bhanu Prasad Panda (supra) upheld the termination of services of the appellant therein for not possessing 55% marks in Master Course.(xiii) The aforesaid two judgments in Damodar Nayak (supra) and Dr. Bhanu Prasad Panda (supra), could not be brought to the notice of either the High Court or this Court while dealing with the issue. Special leave petition in the case of Kalidas Mohapatra & Ors. (supra) has been dealt with without considering the requirement of law merely making the reference to Circular dated 6.11.1990, which was not the first document ever issued in respect of eligibility. Thus, all the judgments and orders passed by the High Court as well as by this Court cited and relied upon by the respondents are held to be not of a binding nature. (Per in curiam)(xiv) In case a person cannot get the benefit of grant-in-aid scheme unless he completes the deficiency of educational qualification, question of grant of UGC pay scale does not arise.(xv) The cases had been entertained and relief had been granted by the High Court without considering the issue of delay and laches merely placing reliance upon earlier judgments obtained by diligent persons approaching the courts within a reasonable time.(xvi) The authority passed illegal orders in contravention of the constitutional provisions arbitrarily without any explanation whatsoever polluting the entire education system of the State, ignoring the purpose of grant-in-aid scheme itself that it has been so provided to maintain the standard of education.(xvii) The High Court granted relief in some cases which had not even been asked for as in some cases the UGC pay scale had been granted with effect from 1.6.1984, i.e., the date prior to 1.1.1986 though the same relief could not have been granted. Thus, it clearly makes out a case of deciding a case without any application of mind.(xviii) In some cases the UGC pay scale has been granted by the High Court prior to the date of according the benefit of grant-in-aid scheme to the concerned teachers which was not permissible in law in view of the law laid down by this Court in Damodar Nayak (supra).(xix) The grievance of the respondents that not upholding the orders passed by the High Court in their favour would amount to a hostile discrimination is not worth acceptance for the reason that Article 14 of the Constitution envisages only positive equality.(xx) Concept of adverse possession of lien on post or holding over are inapplicable in service jurisprudence.(xxi) The submission on behalf of the respondents that Government orders/circulars/letters have been complied with, therefore, no interference is called for, is preposterous for the simple reason that such orders/circulars/letters being violative of statutory provisions and constitutional mandate are just to be ignored in terms of the judgment of this Court in Ram Ganesh Tripathi (supra). 47. In view of the above, it stands crystal clear that a teacher who had been appointed without possessing the requisite qualification at initial stage cannot get the benefit of grant-in-aid scheme unless he acquires the additional qualification and, therefore, question of grant of UGC pay scale would not arise in any circumstance unless such teacher acquires the additional qualification making him eligible for the benefit of grant-in-aid scheme. The cumulative effect therefore comes to that such teacher will not be entitled to claim the UGC pay scale unless he acquires the higher qualification i.e. M.Phil/Ph.D.48. In the facts and circumstances of the case, we feel that terminating the services of those who had been appointed illegally and/or withdrawing the benefits of grant-in-aid scheme of those who had not completed the deficiency in eligibility/educational qualification or withdrawing the benefit thereof from those who had been granted from the date prior to completing the deficiency, may not be desirable as a long period has elapsed. So far as the grant of UGC pay scale is concerned, it cannot be granted prior to the date of acquisition of higher qualification. In view of the above, the impugned judgment/order cannot be sustained in the eyes of law.
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fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin.Needless to say that Limitation Act 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but the High Court for some unexplained reason granted the relief w.e.f. 1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.34. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time.Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted." Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ.It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief.We are fully alive of the object and purpose of according recognition and affiliation to educational institutions. It is the educational authorities of the State which grant recognition to a Committee of Management for opening or running an educational institution. Affiliation is granted by the particular University or Board for undertaking the examination of the students of that college for awarding degrees and certificates. Therefore, while granting the recognition and affiliation even for non-governmental and non-aided private colleges, it is mandatory to adhere to the conditions imposed by them, which also include the minimum eligibility for appointment of teaching staff. The authority at the time of granting approval has to apply its mind to find out whether a person possessing the minimum eligibility has been appointed. In the instant case, it appears to be a clear cut case of arbitrariness which cannot be approved.The rule of law inhibits arbitrary action and also makes it liable to be invalidated. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even give an impression of bias, favouritism and nepotism."Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. The Courts have developed` this principle in relaxation of the rule of stare decisis. Thus the "quotable in law", is avoided and ignored if it is rendered, in ignoratium of a Statute or other binding authority.In view of the above, it stands crystal clear that a teacher who had been appointed without possessing the requisite qualification at initial stage cannot get the benefit of grant-in-aid scheme unless he acquires the additional qualification and, therefore, question of grant of UGC pay scale would not arise in any circumstance unless such teacher acquires the additional qualification making him eligible for the benefit of grant-in-aid scheme. The cumulative effect therefore comes to that such teacher will not be entitled to claim the UGC pay scale unless he acquires the higher qualification i.e. M.Phil/Ph.D.48. In the facts and circumstances of the case, we feel that terminating the services of those who had been appointed illegally and/or withdrawing the benefits of grant-in-aid scheme of those who had not completed the deficiency in eligibility/educational qualification or withdrawing the benefit thereof from those who had been granted from the date prior to completing the deficiency, may not be desirable as a long period has elapsed. So far as the grant of UGC pay scale is concerned, it cannot be granted prior to the date of acquisition of higher qualification. In view of the above, the impugned judgment/order cannot be sustained in the eyes of law.
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POONA RAM Vs. MOTI RAM (D) TH. LRS | case ofRame Gowda (dead) by Lrs.v. M. Varadappa Naidu (dead) by Lrs. and another, (2004) 1 SCC 769 , a three-Judge Bench of this Court, while discussing the Indian law on the subject, observed as under:-?8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain hispossessionand inorder to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. Theownerof anypropertymayprevent evenby using reasonable force a trespasser from an attempted trespass, when it is inthe process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.?13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner.Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has beenacquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case. 14. As mentioned supra, Purkha Ram had purchased three plots from Jagirdar Khoom Singh. In sale deed Ex. A-6, three plots have been mentioned as plots of three houses. One of these, being Plot No. 7, was sold by Purkha Ram to the appellant, one plot being Plot No. 4 was sold to Teja Ram and the third plot being Plot No. 5 was retained by Purkha Ram. 15. In order to prove possession of the property, the plaintiff relied upon the rent note Ex. 1, which shows that the plot in question was let out by the plaintiff to one Joga Ram in the year 1967. On12.05.1967, a fire broke outand the entire fodder stored on the plot got burnt. Thereafter, the plot was kept vacant. DW-7, who has been referred to in order to establish spreading of the fire, stated that the fire started due to sparks coming from a railway engine. But there was no railway line adjacent to the disputed land which could have caused a fire.Even otherwise, the rent note Ex. 1 does not refer to the plot in question, and its boundaries have also not been mentioned. Merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession. 16. The plaintiff/Respondent No. 1 makes much of the old body of a motor vehicle belonging to him lying on the property. Ex. 2 clearly reveals that one part of the motor vehicle was lying on the disputed property and another part was lying on the plot of the plaintiff.The said body of the motor vehicle is about 3 to 4 feet in length only and the same was lying on the boundary of the disputed property. But the plaintiff/Respondent No. 1 claims possession of the entire plot based on such fact. Absolutely no material is found to show that the plaintiff/Respondent No. 1 was in actual possession, much less continuous possession, of the property for a longer period which may be called settled possession or established possession. As mentioned supra, mere casual possession, that too relying on a motor vehicle body lying on a part of the property, would not prove settled possession of the plaintiff. 17. The plaintiff has to prove his case to the satisfaction of the Court. He cannot succeed on the weakness of the case of the defendant. Even otherwise, there is no confusion at all regarding the identity of the property in question and on the basis of material on record, the First Appellate Court has correctly ruled that the appellant/Defendant No. 1 has proved his title and possession over the suit property since the date of his purchase of the property. Prior to the purchase, his predecessor-in-interest was in possession of the same. | 1[ds]A perusal of Ex. 12 (first survey) reveals that Moti Ram was in possession of the land, the plot to the east of which was possessed by Nawala Harijan and in the east of Nawala Harijan?s plot, possession ofPurkha Ram(to recall, predecessor- in-interest of the defendants) on the site has been indicated. Further, the possession of Purkha Ram has also been indicated on a plot to the south of the land duly possessed by Moti Ram. Thus, it is clear that the plots of land owned by Khoom Singh, in possession of these persons, were not uniformly situated. However, after the Municipality took over possession, it seems that orderly formation of the plots was undertaken. Though there was some confusion raised by the plaintiff with regard to the boundaries of the property in question, the First Appellate Court being the final court of fact, on due appreciation of the entire material on record, gave a definite finding that the Trial Court was not justified in decreeing the suit, and observed that Purkha Ram was in possession of the property in question even prior to 1966, and had sold the same through registered sale deed in June 1966 vide Ex. A-2. This sale deed shows the measurement of the land, which corresponds to the plots in question approximately. The judgment of the First Appellate Court reveals that the Municipality had let out only three plots to the Jagirdar, and those three plots together measured 32 x 66 hands (unit of measurement). Thus, each plot measured 32 x 22 hands.These were numbered as Plot No. 4, Plot No. 5 and Plot No. 7. The disputed site is Plot No. 7.Section 64 of the Limitation Act, 1963 contemplates a suit for possession of immovable property based on previous possession and not on title, if brought within 12 years from the date of dispossession. Such a suit is known in law as a suit based on possessory title as distinguishable from proprietary title. It cannot be disputed and is by now well settled that ‘settled possession? or effective possession of a person without title entitles him to protect his possession as if he were a true owner.The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner.Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has beenacquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.In order to prove possession of the property, the plaintiff relied upon the rent note Ex. 1, which shows that the plot in question was let out by the plaintiff to one Joga Ram in the year 1967. On12.05.1967, a fire broke outand the entire fodder stored on the plot got burnt. Thereafter, the plot was kept vacant. DW-7, who has been referred to in order to establish spreading of the fire, stated that the fire started due to sparks coming from a railway engine. But there was no railway line adjacent to the disputed land which could have caused a fire.Even otherwise, the rent note Ex. 1 does not refer to the plot in question, and its boundaries have also not been mentioned. Merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession.The plaintiff/Respondent No. 1 makes much of the old body of a motor vehicle belonging to him lying on the property. Ex. 2 clearly reveals that one part of the motor vehicle was lying on the disputed property and another part was lying on the plot of the plaintiff.The said body of the motor vehicle is about 3 to 4 feet in length only and the same was lying on the boundary of the disputed property. But the plaintiff/Respondent No. 1 claims possession of the entire plot based on such fact. Absolutely no material is found to show that the plaintiff/Respondent No. 1 was in actual possession, much less continuous possession, of the property for a longer period which may be called settled possession or established possession. As mentioned supra, mere casual possession, that too relying on a motor vehicle body lying on a part of the property, would not prove settled possession of the plaintiff.The plaintiff has to prove his case to the satisfaction of the Court. He cannot succeed on the weakness of the case of the defendant. Even otherwise, there is no confusion at all regarding the identity of the property in question and on the basis of material on record, the First Appellate Court has correctly ruled that the appellant/Defendant No. 1 has proved his title and possession over the suit property since the date of his purchase of the property. Prior to the purchase, his predecessor-in-interest was in possession of the same. | 1 | 2,964 | 1,084 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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case ofRame Gowda (dead) by Lrs.v. M. Varadappa Naidu (dead) by Lrs. and another, (2004) 1 SCC 769 , a three-Judge Bench of this Court, while discussing the Indian law on the subject, observed as under:-?8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain hispossessionand inorder to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. Theownerof anypropertymayprevent evenby using reasonable force a trespasser from an attempted trespass, when it is inthe process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.?13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner.Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has beenacquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case. 14. As mentioned supra, Purkha Ram had purchased three plots from Jagirdar Khoom Singh. In sale deed Ex. A-6, three plots have been mentioned as plots of three houses. One of these, being Plot No. 7, was sold by Purkha Ram to the appellant, one plot being Plot No. 4 was sold to Teja Ram and the third plot being Plot No. 5 was retained by Purkha Ram. 15. In order to prove possession of the property, the plaintiff relied upon the rent note Ex. 1, which shows that the plot in question was let out by the plaintiff to one Joga Ram in the year 1967. On12.05.1967, a fire broke outand the entire fodder stored on the plot got burnt. Thereafter, the plot was kept vacant. DW-7, who has been referred to in order to establish spreading of the fire, stated that the fire started due to sparks coming from a railway engine. But there was no railway line adjacent to the disputed land which could have caused a fire.Even otherwise, the rent note Ex. 1 does not refer to the plot in question, and its boundaries have also not been mentioned. Merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession. 16. The plaintiff/Respondent No. 1 makes much of the old body of a motor vehicle belonging to him lying on the property. Ex. 2 clearly reveals that one part of the motor vehicle was lying on the disputed property and another part was lying on the plot of the plaintiff.The said body of the motor vehicle is about 3 to 4 feet in length only and the same was lying on the boundary of the disputed property. But the plaintiff/Respondent No. 1 claims possession of the entire plot based on such fact. Absolutely no material is found to show that the plaintiff/Respondent No. 1 was in actual possession, much less continuous possession, of the property for a longer period which may be called settled possession or established possession. As mentioned supra, mere casual possession, that too relying on a motor vehicle body lying on a part of the property, would not prove settled possession of the plaintiff. 17. The plaintiff has to prove his case to the satisfaction of the Court. He cannot succeed on the weakness of the case of the defendant. Even otherwise, there is no confusion at all regarding the identity of the property in question and on the basis of material on record, the First Appellate Court has correctly ruled that the appellant/Defendant No. 1 has proved his title and possession over the suit property since the date of his purchase of the property. Prior to the purchase, his predecessor-in-interest was in possession of the same.
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1
### Explanation:
A perusal of Ex. 12 (first survey) reveals that Moti Ram was in possession of the land, the plot to the east of which was possessed by Nawala Harijan and in the east of Nawala Harijan?s plot, possession ofPurkha Ram(to recall, predecessor- in-interest of the defendants) on the site has been indicated. Further, the possession of Purkha Ram has also been indicated on a plot to the south of the land duly possessed by Moti Ram. Thus, it is clear that the plots of land owned by Khoom Singh, in possession of these persons, were not uniformly situated. However, after the Municipality took over possession, it seems that orderly formation of the plots was undertaken. Though there was some confusion raised by the plaintiff with regard to the boundaries of the property in question, the First Appellate Court being the final court of fact, on due appreciation of the entire material on record, gave a definite finding that the Trial Court was not justified in decreeing the suit, and observed that Purkha Ram was in possession of the property in question even prior to 1966, and had sold the same through registered sale deed in June 1966 vide Ex. A-2. This sale deed shows the measurement of the land, which corresponds to the plots in question approximately. The judgment of the First Appellate Court reveals that the Municipality had let out only three plots to the Jagirdar, and those three plots together measured 32 x 66 hands (unit of measurement). Thus, each plot measured 32 x 22 hands.These were numbered as Plot No. 4, Plot No. 5 and Plot No. 7. The disputed site is Plot No. 7.Section 64 of the Limitation Act, 1963 contemplates a suit for possession of immovable property based on previous possession and not on title, if brought within 12 years from the date of dispossession. Such a suit is known in law as a suit based on possessory title as distinguishable from proprietary title. It cannot be disputed and is by now well settled that ‘settled possession? or effective possession of a person without title entitles him to protect his possession as if he were a true owner.The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner.Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has beenacquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.In order to prove possession of the property, the plaintiff relied upon the rent note Ex. 1, which shows that the plot in question was let out by the plaintiff to one Joga Ram in the year 1967. On12.05.1967, a fire broke outand the entire fodder stored on the plot got burnt. Thereafter, the plot was kept vacant. DW-7, who has been referred to in order to establish spreading of the fire, stated that the fire started due to sparks coming from a railway engine. But there was no railway line adjacent to the disputed land which could have caused a fire.Even otherwise, the rent note Ex. 1 does not refer to the plot in question, and its boundaries have also not been mentioned. Merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession.The plaintiff/Respondent No. 1 makes much of the old body of a motor vehicle belonging to him lying on the property. Ex. 2 clearly reveals that one part of the motor vehicle was lying on the disputed property and another part was lying on the plot of the plaintiff.The said body of the motor vehicle is about 3 to 4 feet in length only and the same was lying on the boundary of the disputed property. But the plaintiff/Respondent No. 1 claims possession of the entire plot based on such fact. Absolutely no material is found to show that the plaintiff/Respondent No. 1 was in actual possession, much less continuous possession, of the property for a longer period which may be called settled possession or established possession. As mentioned supra, mere casual possession, that too relying on a motor vehicle body lying on a part of the property, would not prove settled possession of the plaintiff.The plaintiff has to prove his case to the satisfaction of the Court. He cannot succeed on the weakness of the case of the defendant. Even otherwise, there is no confusion at all regarding the identity of the property in question and on the basis of material on record, the First Appellate Court has correctly ruled that the appellant/Defendant No. 1 has proved his title and possession over the suit property since the date of his purchase of the property. Prior to the purchase, his predecessor-in-interest was in possession of the same.
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Vannattankandy Ibrayi Vs. Kunhabdulla Hajee | the definition of the "building" in the State Rent Act held that there cannot be a building without a site and once a structure is put up in the land the site becomes part of the structure and thereafter the site becomes part of the building and on that basis the High Court held that once the premises covered by the State Rent Act is raised to the ground tenancy continues to survive in respect of the vacant land. In our view this is not the correct interpretation of SEction 2(1) of the State Rent Act. Section 2(1) uses the words "part of a building or hut". The words "part of the building" do not refer to the land on which the building is constructed but it refers to any other super structure which is part of that main building e.g. in addition to the main building if there is any other super structure in the said premises i.e. motor garage or servant quarter and the same would be part of the building and not the land on which the building has been so constructed. So far the appurtenant land which is beneficial for the purpose of use of the building is also the part of the building. Thus according to the definition of the "Building" in the State Rent Act the building would include any other additional super structure in the some premises and appurtenant land. We are, therefore, of the view that the interpretation put by the Kerala High Court of Section 2(1) for holding that the words "part of a building" means the land on which the building has been constructed is not correct. The provisions of the State Rent Act clearly show that the State Rent Act is self contained Act and the rights and liabilities of landlord and tenant are determined by the provisions contained therein and not by the provisions of the Transfer of Property Act or any other law. The rights of a landlord under the general law are substantially curtailed by the provisions of the State Rent Act as the Act is designed to confer benefit to tenants by providing accommodation and to protect them from unreasonable eviction. In the present case what we find is that the subject matter of tenancy was the shop room which was completely destroyed on account of accidental fire and it was not possible for the tenant to use the shop for which he took the shop on rent. After the shop was destroyed the tenant, without consent or permission of the landlord, cannot put up a new construction on the site where the old structure stood. If it is held that despite the destruction of the shop, tenancy over the vacant land continued unless the tenant exercises his option under Section 108(B)(e) of the Act the situation that emerges is that the tenant would continue as a tenant of a non-existing building and liable to pay rent to the landlord when he is unable to use the shop. The tenancy of the shop, which was let out, was a super structure and what is protected by the State Rent Act is the occupation of the tenant in the super structure. If the argument of appellants counsel is accepted then it would mean that although the tenant on the destruction of the shop cannot put up a new structure on the old site still he would continue to squat on the vacant land. Under such situation it is difficult to hold that the tenancy is not extinguished on the total destruction of the premises governed by the State Rent Act. Under English Law in a contractual tenancy in respect of building and land the liability to pay the rent by the tenant to the landlord continues even on the destruction of the building whereas there is no liability of the tenant to pay rent to the landlord on the destruction of the premises governed by the State Rent Act. Therefore, the view taken by the Bombay High Court in Hind Rubber Industries Pvt. Ltd. (supra) does not lay down the correct view of law. This Court on number of times has held that any special leave petition dismissed by this Court without giving a reason has no binding force on its subsequent decisions. therefore, the two aforesaid cases relied on by counsel for the appellant are of no assistance to the argument advanced by him.25. However, the situation would be different where a landlord himself pulls down a building governed by the State Rent Act. In such a situation the provisions contained in Section 11 of the State Rent Act would be immediately attracted and the Rent Control Court would be free to passe appropriate order.26. Coming to the next question whether the civil court was competent to entertain and try the suit filed by the respondent for recovery of possession of the vacant land. As already stated above, the tenancy in the present case was of a shop room which was let out to the tenant. What is protected by the State Rent Act is the occupation of the tenant in the super structure. the Subject matter of tenancy having been completely destroyed the tenant can no longer use the said shop and in fact he has ceased to occupy the said shop. Section 11 of the State Rent Act does not provide for eviction of the tenant on the ground of destruction of the building or the super structure. Thus when there is no super structure in existence the landlord cannot claim recovery of possession of vacant site under the State Rent Act. The only remedy available to him is to file a suit in a Civil Court for recovery of possession of land. In view of the matter the Civil Court was competent to entertain and try the suit filed by the respondent landlord. 27. For the aforesaid reason we are in full agreement with the view taken by the High Court. consequently, | 0[ds]We are, therefore, of the view that the interpretation put by the Kerala High Court of Section 2(1) for holding that the words "part of a building" means the land on which the building has been constructed is not correct. The provisions of the State Rent Act clearly show that the State Rent Act is self contained Act and the rights and liabilities of landlord and tenant are determined by the provisions contained therein and not by the provisions of the Transfer of Property Act or any other law. The rights of a landlord under the general law are substantially curtailed by the provisions of the State Rent Act as the Act is designed to confer benefit to tenants by providing accommodation and to protect them from unreasonable eviction. In the present case what we find is that the subject matter of tenancy was the shop room which was completely destroyed on account of accidental fire and it was not possible for the tenant to use the shop for which he took the shop on rent. After the shop was destroyed the tenant, without consent or permission of the landlord, cannot put up a new construction on the site where the old structure stood. If it is held that despite the destruction of the shop, tenancy over the vacant land continued unless the tenant exercises his option under Section 108(B)(e) of the Act the situation that emerges is that the tenant would continue as a tenant of a non-existing building and liable to pay rent to the landlord when he is unable to use the shop. The tenancy of the shop, which was let out, was a super structure and what is protected by the State Rent Act is the occupation of the tenant in the super structure. If the argument of appellants counsel is accepted then it would mean that although the tenant on the destruction of the shop cannot put up a new structure on the old site still he would continue to squat on the vacant land. Under such situation it is difficult to hold that the tenancy is not extinguished on the total destruction of the premises governed by the State Rent Act. Under English Law in a contractual tenancy in respect of building and land the liability to pay the rent by the tenant to the landlord continues even on the destruction of the building whereas there is no liability of the tenant to pay rent to the landlord on the destruction of the premises governed by the State Rent Act. Therefore, the view taken by the Bombay High Court in Hind Rubber Industries Pvt. Ltd. (supra) does not lay down the correct view of law. This Court on number of times has held that any special leave petition dismissed by this Court without giving a reason has no binding force on its subsequent decisions. therefore, the two aforesaid cases relied on by counsel for the appellant are of no assistance to the argument advanced by him.25. However, the situation would be different where a landlord himself pulls down a building governed by the State Rent Act. In such a situation the provisions contained in Section 11 of the State Rent Act would be immediately attracted and the Rent Control Court would be free to passe appropriate order.26. Coming to the next question whether the civil court was competent to entertain and try the suit filed by the respondent for recovery of possession of the vacant land. As already stated above, the tenancy in the present case was of a shop room which was let out to the tenant. What is protected by the State Rent Act is the occupation of the tenant in the super structure. the Subject matter of tenancy having been completely destroyed the tenant can no longer use the said shop and in fact he has ceased to occupy the said shop. Section 11 of the State Rent Act does not provide for eviction of the tenant on the ground of destruction of the building or the super structure. Thus when there is no super structure in existence the landlord cannot claim recovery of possession of vacant site under the State Rent Act. The only remedy available to him is to file a suit in a Civil Court for recovery of possession of land. In view of the matter the Civil Court was competent to entertain and try the suit filed by the respondent landlord. | 0 | 6,137 | 799 | ### 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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the definition of the "building" in the State Rent Act held that there cannot be a building without a site and once a structure is put up in the land the site becomes part of the structure and thereafter the site becomes part of the building and on that basis the High Court held that once the premises covered by the State Rent Act is raised to the ground tenancy continues to survive in respect of the vacant land. In our view this is not the correct interpretation of SEction 2(1) of the State Rent Act. Section 2(1) uses the words "part of a building or hut". The words "part of the building" do not refer to the land on which the building is constructed but it refers to any other super structure which is part of that main building e.g. in addition to the main building if there is any other super structure in the said premises i.e. motor garage or servant quarter and the same would be part of the building and not the land on which the building has been so constructed. So far the appurtenant land which is beneficial for the purpose of use of the building is also the part of the building. Thus according to the definition of the "Building" in the State Rent Act the building would include any other additional super structure in the some premises and appurtenant land. We are, therefore, of the view that the interpretation put by the Kerala High Court of Section 2(1) for holding that the words "part of a building" means the land on which the building has been constructed is not correct. The provisions of the State Rent Act clearly show that the State Rent Act is self contained Act and the rights and liabilities of landlord and tenant are determined by the provisions contained therein and not by the provisions of the Transfer of Property Act or any other law. The rights of a landlord under the general law are substantially curtailed by the provisions of the State Rent Act as the Act is designed to confer benefit to tenants by providing accommodation and to protect them from unreasonable eviction. In the present case what we find is that the subject matter of tenancy was the shop room which was completely destroyed on account of accidental fire and it was not possible for the tenant to use the shop for which he took the shop on rent. After the shop was destroyed the tenant, without consent or permission of the landlord, cannot put up a new construction on the site where the old structure stood. If it is held that despite the destruction of the shop, tenancy over the vacant land continued unless the tenant exercises his option under Section 108(B)(e) of the Act the situation that emerges is that the tenant would continue as a tenant of a non-existing building and liable to pay rent to the landlord when he is unable to use the shop. The tenancy of the shop, which was let out, was a super structure and what is protected by the State Rent Act is the occupation of the tenant in the super structure. If the argument of appellants counsel is accepted then it would mean that although the tenant on the destruction of the shop cannot put up a new structure on the old site still he would continue to squat on the vacant land. Under such situation it is difficult to hold that the tenancy is not extinguished on the total destruction of the premises governed by the State Rent Act. Under English Law in a contractual tenancy in respect of building and land the liability to pay the rent by the tenant to the landlord continues even on the destruction of the building whereas there is no liability of the tenant to pay rent to the landlord on the destruction of the premises governed by the State Rent Act. Therefore, the view taken by the Bombay High Court in Hind Rubber Industries Pvt. Ltd. (supra) does not lay down the correct view of law. This Court on number of times has held that any special leave petition dismissed by this Court without giving a reason has no binding force on its subsequent decisions. therefore, the two aforesaid cases relied on by counsel for the appellant are of no assistance to the argument advanced by him.25. However, the situation would be different where a landlord himself pulls down a building governed by the State Rent Act. In such a situation the provisions contained in Section 11 of the State Rent Act would be immediately attracted and the Rent Control Court would be free to passe appropriate order.26. Coming to the next question whether the civil court was competent to entertain and try the suit filed by the respondent for recovery of possession of the vacant land. As already stated above, the tenancy in the present case was of a shop room which was let out to the tenant. What is protected by the State Rent Act is the occupation of the tenant in the super structure. the Subject matter of tenancy having been completely destroyed the tenant can no longer use the said shop and in fact he has ceased to occupy the said shop. Section 11 of the State Rent Act does not provide for eviction of the tenant on the ground of destruction of the building or the super structure. Thus when there is no super structure in existence the landlord cannot claim recovery of possession of vacant site under the State Rent Act. The only remedy available to him is to file a suit in a Civil Court for recovery of possession of land. In view of the matter the Civil Court was competent to entertain and try the suit filed by the respondent landlord. 27. For the aforesaid reason we are in full agreement with the view taken by the High Court. consequently,
### Response:
0
### Explanation:
We are, therefore, of the view that the interpretation put by the Kerala High Court of Section 2(1) for holding that the words "part of a building" means the land on which the building has been constructed is not correct. The provisions of the State Rent Act clearly show that the State Rent Act is self contained Act and the rights and liabilities of landlord and tenant are determined by the provisions contained therein and not by the provisions of the Transfer of Property Act or any other law. The rights of a landlord under the general law are substantially curtailed by the provisions of the State Rent Act as the Act is designed to confer benefit to tenants by providing accommodation and to protect them from unreasonable eviction. In the present case what we find is that the subject matter of tenancy was the shop room which was completely destroyed on account of accidental fire and it was not possible for the tenant to use the shop for which he took the shop on rent. After the shop was destroyed the tenant, without consent or permission of the landlord, cannot put up a new construction on the site where the old structure stood. If it is held that despite the destruction of the shop, tenancy over the vacant land continued unless the tenant exercises his option under Section 108(B)(e) of the Act the situation that emerges is that the tenant would continue as a tenant of a non-existing building and liable to pay rent to the landlord when he is unable to use the shop. The tenancy of the shop, which was let out, was a super structure and what is protected by the State Rent Act is the occupation of the tenant in the super structure. If the argument of appellants counsel is accepted then it would mean that although the tenant on the destruction of the shop cannot put up a new structure on the old site still he would continue to squat on the vacant land. Under such situation it is difficult to hold that the tenancy is not extinguished on the total destruction of the premises governed by the State Rent Act. Under English Law in a contractual tenancy in respect of building and land the liability to pay the rent by the tenant to the landlord continues even on the destruction of the building whereas there is no liability of the tenant to pay rent to the landlord on the destruction of the premises governed by the State Rent Act. Therefore, the view taken by the Bombay High Court in Hind Rubber Industries Pvt. Ltd. (supra) does not lay down the correct view of law. This Court on number of times has held that any special leave petition dismissed by this Court without giving a reason has no binding force on its subsequent decisions. therefore, the two aforesaid cases relied on by counsel for the appellant are of no assistance to the argument advanced by him.25. However, the situation would be different where a landlord himself pulls down a building governed by the State Rent Act. In such a situation the provisions contained in Section 11 of the State Rent Act would be immediately attracted and the Rent Control Court would be free to passe appropriate order.26. Coming to the next question whether the civil court was competent to entertain and try the suit filed by the respondent for recovery of possession of the vacant land. As already stated above, the tenancy in the present case was of a shop room which was let out to the tenant. What is protected by the State Rent Act is the occupation of the tenant in the super structure. the Subject matter of tenancy having been completely destroyed the tenant can no longer use the said shop and in fact he has ceased to occupy the said shop. Section 11 of the State Rent Act does not provide for eviction of the tenant on the ground of destruction of the building or the super structure. Thus when there is no super structure in existence the landlord cannot claim recovery of possession of vacant site under the State Rent Act. The only remedy available to him is to file a suit in a Civil Court for recovery of possession of land. In view of the matter the Civil Court was competent to entertain and try the suit filed by the respondent landlord.
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B.K. PAVITHRA AND ORS. Vs. UNION OF INDIA AND ORS | jurisprudence that what cannot be done directly cannot be permitted to be done indirectly. 20. The view of the two judge Bench in Gurdip Singh has been reiterated by this Court in Zahira Habibullah Sheikh v State of Gujarat (2004) 5 SCC 353 , Common Cause v Union of India (2004) 5 SCC 222 , Ram Chandra Singh v Savitri Devi (2004) 12 SCC 713 and APSRTC v Abdul Karim (2007) 3 SCJ 168. 21. Recently, in M C Mehta v Union of India (2019) 2 SCJ 640 , a two judge Bench of this Court rejected an application filed before it seeking a clarification that the applicant is permitted to carry out construction on the land in question in the following terms: …the view expressed by this Court in Gurdip Singh Uban cannot be limited only to applications for modification, clarification or recall. There is a growing tendency to provide different nomenclatures to applications to side-step the rigours and limitations imposed on an applicant and the Court in dealing with a review petition. Applications can be and are titled as applications for directions, rehearing, reconsideration, revisiting etc. etc. One has only to open a thesaurus and find an equivalent word and give an application an appropriate nomenclature so that it could be taken up for consideration in open Court and on its merits and not as a review petition by circulation. In our opinion, the nomenclature given to an application is of absolutely no consequence-what is of importance is the substance of the application and if it is found, in substance, to be an application for review, it should be dealt with by the Court as such, and by circulation. (Emphasis Supplied) 22. The Court noted the growing practice, despite the decision of this Court in Gurdip Singh, of filing applications before this Court with different nomenclatures in order to bypass or circumvent the procedure envisaged for the consideration of the reliefs sought. This Court clarified that the nomenclature of an application is of no consequence and courts must assess the contents and reliefs sought in the application to determine what is the true nature of the application. 23. Though the cases adverted to above were rendered in the context of applications before this Court which were held to be, in substance, applications for the review of a judgment, the principle of law that emerges is that courts may scrutinise applications to assess whether they, in substance, seek a relief that may not be granted in those applications. Where the court is of the opinion that the nature of the application differs from its nomenclature and there is a method prescribed in law for the grant of the reliefs sought, it may hold that the application before it is not maintainable. 24. In the present case, the basis of the MAs is founded in the steps taken by the State of Karnataka pursuant to the judgment of this Court in B K Pavitra II. The MA adverts to the GO dated 15 May 2019 and the circular dated 24 June 2019, both of which were issued subsequent to the decision of this Court. 25. By the GO dated 15 May 2019, the stay on the earlier GO dated 27 February 2019 which stipulated instructions for the implementation of the Reservation Act 2018 was lifted. Consequently, the Reservation Act 2018, as upheld by this Court, was to be operationalised in terms of the instructions contained in the GO dated 27 February 2019. By the circular dated 24 June 2019, a list of FAQs and their answers were annexed to the Schedule which concerned the preparation of the seniority list in accordance with the GO dated 27 February 2019. 26. The judgment of this Court in B K Pavitra II concerned the constitutional validity of the Reservation Act 2018 and not actions taken thereunder or in pursuance of its implementation. The present MAs, though styled as applications for directions, seek to lay challenge to the actions of the State government to carry into effect the provisions of the Reservation Act 2018. This is clear from the nature of the reliefs sought in the MAs, which impugn both the GO dated 15 May 2019 and the circular dated 24 June 2019, both of which are subsequent to the judgment of this Court in B K Pavitra II. 27. The remedy, styled as directions, sought by the applicants cannot lie in the form of MAs. Prayer (a) which seeks a direction to re-work all promotions on the basis of post based reservations impugns item 3 of the FAQs annexed to the circular dated 24 June 2019 which states that the list is to be revised on the basis of the total number of government employees in the respective cadre. Prayer (b) seeks the issuance of a direction to the State of Karnataka to apply the creamy layer principle at the entry level. As it has been noted above, the judgment of this Court in B K Pavitra II concerned the grant of consequential seniority and not the applicability of the creamy layer at the entry level. Prayer (c) seeks the issuance of a direction to the State Government to ensure, in the implementation of the Reservation Act 2018, compliance with the decision in Nagaraj. 28. The present MAs are, in effect, a substantive challenge to the actions of the State government in implementing the Reservation Act 2018 through the GO dated 15 May 2019 and the circular dated 24 June 2019. If the applicants are aggrieved by the steps which have been taken by the State government, it is open to them to pursue a substantive remedy for challenging the steps taken by the State government in independent proceedings. 29. We are clearly of the view that MAs of this nature are not maintainable. Having come to this conclusion, no need arises for this Court to adjudicate upon the other contentions urged by Dr Rajeev Dhavan, learned Senior Counsel appearing for the applicants. | 0[ds]23. Though the cases adverted to above were rendered in the context of applications before this Court which were held to be, in substance, applications for the review of a judgment, the principle of law that emerges is that courts may scrutinise applications to assess whether they, in substance, seek a relief that may not be granted in those applications. Where the court is of the opinion that the nature of the application differs from its nomenclature and there is a method prescribed in law for the grant of the reliefs sought, it may hold that the application before it is not maintainable24. In the present case, the basis of the MAs is founded in the steps taken by the State of Karnataka pursuant to the judgment of this Court in B K Pavitra II. The MA adverts to the GO dated 15 May 2019 and the circular dated 24 June 2019, both of which were issued subsequent to the decision of this Court25. By the GO dated 15 May 2019, the stay on the earlier GO dated 27 February 2019 which stipulated instructions for the implementation of the Reservation Act 2018 was lifted. Consequently, the Reservation Act 2018, as upheld by this Court, was to be operationalised in terms of the instructions contained in the GO dated 27 February 2019. By the circular dated 24 June 2019, a list of FAQs and their answers were annexed to the Schedule which concerned the preparation of the seniority list in accordance with the GO dated 27 February 201926. The judgment of this Court in B K Pavitra II concerned the constitutional validity of the Reservation Act 2018 and not actions taken thereunder or in pursuance of its implementation. The present MAs, though styled as applications for directions, seek to lay challenge to the actions of the State government to carry into effect the provisions of the Reservation Act 2018. This is clear from the nature of the reliefs sought in the MAs, which impugn both the GO dated 15 May 2019 and the circular dated 24 June 2019, both of which are subsequent to the judgment of this Court in B K Pavitra II27. The remedy, styled as directions, sought by the applicants cannot lie in the form of MAs. Prayer (a) which seeks a direction to re-work all promotions on the basis of post based reservations impugns item 3 of the FAQs annexed to the circular dated 24 June 2019 which states that the list is to be revised on the basis of the total number of government employees in the respective cadre. Prayer (b) seeks the issuance of a direction to the State of Karnataka to apply the creamy layer principle at the entry level. As it has been noted above, the judgment of this Court in B K Pavitra II concerned the grant of consequential seniority and not the applicability of the creamy layer at the entry level. Prayer (c) seeks the issuance of a direction to the State Government to ensure, in the implementation of the Reservation Act 2018, compliance with the decision in Nagaraj28. The present MAs are, in effect, a substantive challenge to the actions of the State government in implementing the Reservation Act 2018 through the GO dated 15 May 2019 and the circular dated 24 June 2019. If the applicants are aggrieved by the steps which have been taken by the State government, it is open to them to pursue a substantive remedy for challenging the steps taken by the State government in independent proceedings29. We are clearly of the view that MAs of this nature are not maintainable. Having come to this conclusion, no need arises for this Court to adjudicate upon the other contentions urged by Dr Rajeev Dhavan, learned Senior Counsel appearing for the applicants. | 0 | 4,176 | 693 | ### Instruction:
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jurisprudence that what cannot be done directly cannot be permitted to be done indirectly. 20. The view of the two judge Bench in Gurdip Singh has been reiterated by this Court in Zahira Habibullah Sheikh v State of Gujarat (2004) 5 SCC 353 , Common Cause v Union of India (2004) 5 SCC 222 , Ram Chandra Singh v Savitri Devi (2004) 12 SCC 713 and APSRTC v Abdul Karim (2007) 3 SCJ 168. 21. Recently, in M C Mehta v Union of India (2019) 2 SCJ 640 , a two judge Bench of this Court rejected an application filed before it seeking a clarification that the applicant is permitted to carry out construction on the land in question in the following terms: …the view expressed by this Court in Gurdip Singh Uban cannot be limited only to applications for modification, clarification or recall. There is a growing tendency to provide different nomenclatures to applications to side-step the rigours and limitations imposed on an applicant and the Court in dealing with a review petition. Applications can be and are titled as applications for directions, rehearing, reconsideration, revisiting etc. etc. One has only to open a thesaurus and find an equivalent word and give an application an appropriate nomenclature so that it could be taken up for consideration in open Court and on its merits and not as a review petition by circulation. In our opinion, the nomenclature given to an application is of absolutely no consequence-what is of importance is the substance of the application and if it is found, in substance, to be an application for review, it should be dealt with by the Court as such, and by circulation. (Emphasis Supplied) 22. The Court noted the growing practice, despite the decision of this Court in Gurdip Singh, of filing applications before this Court with different nomenclatures in order to bypass or circumvent the procedure envisaged for the consideration of the reliefs sought. This Court clarified that the nomenclature of an application is of no consequence and courts must assess the contents and reliefs sought in the application to determine what is the true nature of the application. 23. Though the cases adverted to above were rendered in the context of applications before this Court which were held to be, in substance, applications for the review of a judgment, the principle of law that emerges is that courts may scrutinise applications to assess whether they, in substance, seek a relief that may not be granted in those applications. Where the court is of the opinion that the nature of the application differs from its nomenclature and there is a method prescribed in law for the grant of the reliefs sought, it may hold that the application before it is not maintainable. 24. In the present case, the basis of the MAs is founded in the steps taken by the State of Karnataka pursuant to the judgment of this Court in B K Pavitra II. The MA adverts to the GO dated 15 May 2019 and the circular dated 24 June 2019, both of which were issued subsequent to the decision of this Court. 25. By the GO dated 15 May 2019, the stay on the earlier GO dated 27 February 2019 which stipulated instructions for the implementation of the Reservation Act 2018 was lifted. Consequently, the Reservation Act 2018, as upheld by this Court, was to be operationalised in terms of the instructions contained in the GO dated 27 February 2019. By the circular dated 24 June 2019, a list of FAQs and their answers were annexed to the Schedule which concerned the preparation of the seniority list in accordance with the GO dated 27 February 2019. 26. The judgment of this Court in B K Pavitra II concerned the constitutional validity of the Reservation Act 2018 and not actions taken thereunder or in pursuance of its implementation. The present MAs, though styled as applications for directions, seek to lay challenge to the actions of the State government to carry into effect the provisions of the Reservation Act 2018. This is clear from the nature of the reliefs sought in the MAs, which impugn both the GO dated 15 May 2019 and the circular dated 24 June 2019, both of which are subsequent to the judgment of this Court in B K Pavitra II. 27. The remedy, styled as directions, sought by the applicants cannot lie in the form of MAs. Prayer (a) which seeks a direction to re-work all promotions on the basis of post based reservations impugns item 3 of the FAQs annexed to the circular dated 24 June 2019 which states that the list is to be revised on the basis of the total number of government employees in the respective cadre. Prayer (b) seeks the issuance of a direction to the State of Karnataka to apply the creamy layer principle at the entry level. As it has been noted above, the judgment of this Court in B K Pavitra II concerned the grant of consequential seniority and not the applicability of the creamy layer at the entry level. Prayer (c) seeks the issuance of a direction to the State Government to ensure, in the implementation of the Reservation Act 2018, compliance with the decision in Nagaraj. 28. The present MAs are, in effect, a substantive challenge to the actions of the State government in implementing the Reservation Act 2018 through the GO dated 15 May 2019 and the circular dated 24 June 2019. If the applicants are aggrieved by the steps which have been taken by the State government, it is open to them to pursue a substantive remedy for challenging the steps taken by the State government in independent proceedings. 29. We are clearly of the view that MAs of this nature are not maintainable. Having come to this conclusion, no need arises for this Court to adjudicate upon the other contentions urged by Dr Rajeev Dhavan, learned Senior Counsel appearing for the applicants.
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23. Though the cases adverted to above were rendered in the context of applications before this Court which were held to be, in substance, applications for the review of a judgment, the principle of law that emerges is that courts may scrutinise applications to assess whether they, in substance, seek a relief that may not be granted in those applications. Where the court is of the opinion that the nature of the application differs from its nomenclature and there is a method prescribed in law for the grant of the reliefs sought, it may hold that the application before it is not maintainable24. In the present case, the basis of the MAs is founded in the steps taken by the State of Karnataka pursuant to the judgment of this Court in B K Pavitra II. The MA adverts to the GO dated 15 May 2019 and the circular dated 24 June 2019, both of which were issued subsequent to the decision of this Court25. By the GO dated 15 May 2019, the stay on the earlier GO dated 27 February 2019 which stipulated instructions for the implementation of the Reservation Act 2018 was lifted. Consequently, the Reservation Act 2018, as upheld by this Court, was to be operationalised in terms of the instructions contained in the GO dated 27 February 2019. By the circular dated 24 June 2019, a list of FAQs and their answers were annexed to the Schedule which concerned the preparation of the seniority list in accordance with the GO dated 27 February 201926. The judgment of this Court in B K Pavitra II concerned the constitutional validity of the Reservation Act 2018 and not actions taken thereunder or in pursuance of its implementation. The present MAs, though styled as applications for directions, seek to lay challenge to the actions of the State government to carry into effect the provisions of the Reservation Act 2018. This is clear from the nature of the reliefs sought in the MAs, which impugn both the GO dated 15 May 2019 and the circular dated 24 June 2019, both of which are subsequent to the judgment of this Court in B K Pavitra II27. The remedy, styled as directions, sought by the applicants cannot lie in the form of MAs. Prayer (a) which seeks a direction to re-work all promotions on the basis of post based reservations impugns item 3 of the FAQs annexed to the circular dated 24 June 2019 which states that the list is to be revised on the basis of the total number of government employees in the respective cadre. Prayer (b) seeks the issuance of a direction to the State of Karnataka to apply the creamy layer principle at the entry level. As it has been noted above, the judgment of this Court in B K Pavitra II concerned the grant of consequential seniority and not the applicability of the creamy layer at the entry level. Prayer (c) seeks the issuance of a direction to the State Government to ensure, in the implementation of the Reservation Act 2018, compliance with the decision in Nagaraj28. The present MAs are, in effect, a substantive challenge to the actions of the State government in implementing the Reservation Act 2018 through the GO dated 15 May 2019 and the circular dated 24 June 2019. If the applicants are aggrieved by the steps which have been taken by the State government, it is open to them to pursue a substantive remedy for challenging the steps taken by the State government in independent proceedings29. We are clearly of the view that MAs of this nature are not maintainable. Having come to this conclusion, no need arises for this Court to adjudicate upon the other contentions urged by Dr Rajeev Dhavan, learned Senior Counsel appearing for the applicants.
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State of Uttar Pradesh and Another Vs. M. J. Siddiqui and Others | in the list of the officers by direct recruitment in 1957 batch.Note: 1. The lists of the officers by direct recruitment and by promotion will contain only the names who were appointed temporary and permanent in PMS (I) with the approval of the Public Service Commission.2. In accordance with the aforesaid principles G the names of the officers will be placed in the list by direct recruitment after approval by the Commission for regular appointment.3. The names of the officers will be placed in the list of promotee officers in order of the determined seniority in accordance with the above mentioned principles G vide notification No. 2780 K/5/247/57 dated the 13th June 1963."24. It was in consequence of these directions that the Government by virtue of the order impugned fixed the seniority of the members of the new Service, placing the appellants above the petitioners and awarding to them the selection grade Prior to the petitioners.25. Thus, in short, the, heart of the matter is whether the order of 1968 as confirmed by the order dated 18-12-1971 was in any way inconsistent with Rules 17 and 18 of the 1945 Rules so as to nullify the mode of seniority adopted by the Government and the promotion to the selection grade made by it under the impugned order. In our opinion, the following propositions emerge from the history of the new service and the foregoing discussion:-(1) To begin with, the Rules of 194 5 had absolutely no application to the new Service. Those Rules applied to the old PMS I Service only and, therefore, to a situation completely different from that which prevailed after the merger of the two Services on 1-11-1964. As the Government order merging the two Services was also an order passed under Art. 309 of the Constitution, it had statutory force and was binding on all the officers of the new Service.(2) At the time when the 1964 order was passed the Government deliberately did not frame any rules in order to determine the inter se seniority of the members of the new Service but reserve d the right to do so.(3) It was under the order dated February 20, 1965 that for the first time the Rules of 1945 were applied to the new Service and that too "unless otherwise ordered" i.e., purely on a provisional basis. The order of 1968 laid down the principles for fixing seniority and, being a statutory order, superseded all the Rules in question including Rules 17 and 18 of the 1945 Rules. It was further confirmed by the order dated l 8-12-1971.We, therefore, find ourselves unable to agree with the view taken by the High Court that direction (b) of the 1968 order should be struck down as being inconsistent with Rule 18 of the 194 5 Rules.26. We might further point out that having regard to the history of PMS I and P.M.S. II if Rule 18 of the 1945 Rules were applied to the parties and the 1968 order ignored, the resultant effect would be that equals and unequals would be treated similarly which would amount to a direct infraction of Articles 14 and 16 of the Constitution. In order to illustrate our point we give below a chart showing the different attributes possessed by the two set of officers, namely, the appellants and the petitioners:-----------------------------------------------------------Appellants Petitioner-----------------------------------------------------------1. Appellants were direct 1. The Petitioners cases wererecruits to PMS I; sent for consideration by theappointed in a substan- selection Committee in Junetive capacity in a reg- 1963 but they were not consid-ular manner on the reco- erd fit for selection videmmendation of the Public the relevant extracts belowService Commission though from the Affidavit of Mukundto temporary posts. Swarup Srivastava. UpperDivision Assistant, MedicalSection, U.P. civilSecretariat:" All the petitioners who wereeligible for promotion wereeligible for promotion by thepublic Service Commission andthe Departmental SelectionCommittee in the mannerprescribed, vide officememorandum dated May 15 , 1956as modified byOffice memorandum datedDecember 18, 1956. The casesof the petitioners were notrecommended by the SelectionCommittee for promotion toProvincial Medical Service I."(Emphasis ours)2. The appellants were 2. The Petitioner belonged toadmittedly appointed by the PMS II which was a subordinate Governor to a higher Service, Service with a lower scale ;Viz., PMS I Carrying a higher their appointing authorityScale of pay with better being the Director, Medicalprospects and higher Service and not the Governor.responsibilities.3. At the time of appointment 3. The petitioner did not putto the selection grade the in the requisite experience inappellants had put in there- PMS I for promotion toquisite experience of more selection grade.than eight years in PMS Irequired for promotion to theselection grade.27. Having regard to these factors, it is obvious that the appellants and the petitioners were not similarly situate and if the petitioners were put above the appellants in the matter of seniority, it would have resulted in a gross and wholly unreasonable discrimination by making junior officers senior to superior officers.28. A number of authorities were cited before us on the question of the principles of seniority but they are not at all applicable to the peculiar facts of the present case which have special features of their own and we have therefore not considered it necessary to deal with those authorities.29. As regards the case of appellant No. 8, Dr. Sudhir Gupta, it stands on an altogether different. footing which is even higher than those of appellants 1 to 7. To begin with this appellant was recruited directly to PMS I from PMS II through the Public Service Commission on 13-7-1959. He actually joined the PMS I Service on 11-11-1959. He passed M.B.B.S. in 1954 and was among the first ten candidates. In 1956, he obtained Child Health Diploma. Thus, in all respect the case of appellant No. 8 is exactly similar to that of the other appellants with this difference that he was appointed to PMS I about five years before the PMS II was merged into PMS l and there fore the petitioners could not claim seniority over him. | 1[ds]In our opinion, the High Court seems to have laid undue stress on the fact that the appellants were appointed on a temporary basis while overlooking the surrounding circumstances and the terms of the advertisement and the Rules, A referred to above, under which the appellants were appointed. We have already indicated that Rule 17(23 was the only Rule under which are temporary or a n officiating appointment could be made by the Governor without reference to the Public Service Commission. In the instant case, it is not disputed that the appellants were appointed after reference to and on the recommendations of the Public Service Commission. The appointment of the appellants, therefore. would, not fall under Rule 17(2). What then is the nature of the appointments of the appellants is the serious question to be decided. In our opinion, reading the advertisement and the manner and mode of the appointment of the appellants, it must be held that they were appointed in a substantive capacity to temporary posts which according to the advertisement were likely to continue. There does not appear to be any magical formula or special charm in the word substantive. The mere use of the term appointment in a temporary vacancy by itself would not conclude the matter or lead to the irresistible inference that the appointment was not made in a substantive capacity because even a substantive appointment could be made to a purely temporary vacancy. In order, therefore, to determine the nature of the appointment, we have to look to the heart and substance of the matter, the surrounding circumstances, the mode, the manner and the terms of appointment and other relevant factors. In the instant case, we cannot ignore the advertisement which forms the pivotal basis of the direct recruitment in pursuance of which the appellants w ere appointed. Another circumstances that supports our view is that the appellants were not appointed merely on an ad hoc basis but through the Public Service Commission and in a regular way. Finally, the appellants were appointed to PMS I which was doubtless a superior service carrying a higher scale than PMS II of which the petitioners wereview of the circumstances discussed above, we are inclined to take the view that not much can be made of the fact that the order appointing the appellants 1-7 does not mention that they were appointed In a substantive capacity and that what is said is that they were appointed on a temporary basis. We shall consider this aspect more fully after we have completed the history of the Services and their ultimate merger as well as the events following thereafter. We might mention, however, that Dr. M. J. Siddiqui (respondent No. 1 in Civil Appeal No. 2870 of 1977) had filed a petition in the High Court regarding his seniority and other matters but before the petition could be heard the two Services were merged and the petition was ultimately dismissed on 2-8-196 5 asmaking promotions from the lower service to the higher. service, the Government finally decided to have one medical service and with this object in view by order No. U- 1312-A-II/V-2566/63 dated 2-11-64, the Government merged the two Services, namely, PMS I and PMS II with effect fromwas rather unfortunate that while merging the two services into one, the Government did not consider it expedient to lay down rules for fixing inter se Seniority of the officers of the two erstwhile services. It was, however, mentioned in para 4 that rules regarding fixation of the said seniority would issue separately. Another important aspect of the matter which is germane to the issues arising in these appeals is that while the right to inter se seniority of the members of the two services was reserved, there is no provision in the order which either applies or continues the Rules of 1945 even in respect of the inter se seniority of members of each merging service. It w as, therefore, rightly contended by the appellants that in the absence of any such provision in the order which was also passed under Art. 309 of the constitution and was therefore of a statutory character or, at any rate, had a statutory flavour, the Rules of 1945 could not be applied to the situation obtaining after 31-15-1964 subsequent orders passed by the Government throw some light on thisis, therefore, manifest that during the interregnum, that is to say, 1-11-64 to 22-2-65, the Rules of 1945 were inapplicable so far as the new Service was concerned. It was for the first time on the 20th February 1965 that by the order, extracted above, the U.P. Medical Service (Mens Branch) Rules, 194 5 were made applicable to the new Service and that too on a purely provisional basis until fresh Rules were framed by the Government for determining the inter se seniority 1 of the officers concerned. The words unless otherwise ordered clearly show that the application of the 1945 Rules was purely provisional and was to remain in force unless fresh rules were made. Another order by the Government was passed on 26-12-67 regarding the mode of recruitment, qualifications, etc., which is not very relevant for our purpose. Ultimately, a final order laying down the principles on the basis of which the inter se seniority of the members of the two Services was to be determined in the new Service were laidwas in consonance with these directions that the Government fixed the seniority of appellants 1 to 7 and petitioners 1 to 12. So far as the appellants were concerned, they clearly fell within the ambit A of direction (b) which provided for officers appointed to PMS I either on a permanent or temporary basis prior to the merger in a regular manner in consultation with the Lok Sewa Ayog (Public Service Commission) in order of their seniority. It may be pertinent to note here that direction (b) does not speak of any substantive appointment whatsoever but equates the officers appointed to PMS I on permanent or temporary basis prior to merger. In other words, what the direction contemplates is that any officer appointed to a post whether permanent or temporary in PMS I which was the Senior Service prior to merger, would rank after merger above those officers who were drawn from PMS II. That the appellants fulfilled all the conditions mentioned in direction (b) is not disputed but the constitutionality of that direction was challenged before the High Court on the ground that it was inconsistent with Rule 18 of the 1945 Rules. This contention found favour with the High Court which held that direction (b) was invalid as being inconsistent with the Rules of 1945. In coming to this finding, the High Court appears to have overlooked the fact that the 1945. Rules did not apply to the new Service at its inception and that they were made applicable to the new Service only for a short while by virtue of the order dated 20th February 1965, purely on a provisional basis as the Government made it quite clear in that order itself that the 1945 Rule s will apply unless otherwise ordered and thus had reserved the right to pass final orders regarding seniority later which was done in 1968. In these circumstances, therefore, the order of the High Court suffers from twothat there was no real or apparent inconsistency between rule 18 of the 1945 Rules and the 1968 directions, .(ii) that initially the 1945 Rules ceased to apply to the new Service but were made applicable thereto only for a shortwhile by way of a stop-gap arrangement inHigh Court appears to have interpreted the directions of 1968 completely out of context. On the other hand, we feel that those directions seek to strike a just balance between the officers of the erstwhile Services after they were merged into the new Service. We shall immediately show that having regard to the exigencies of the situation created by the merger, no other mode of seniority , which was just and fair, could be evolved for the newour opinion, the following propositions emerge from the history of the new service and the foregoingTo begin with, the Rules of 194 5 had absolutely no application to the new Service. Those Rules applied to the old PMS I Service only and, therefore, to a situation completely different from that which prevailed after the merger of the two Services on 1-11-1964. As the Government order merging the two Services was also an order passed under Art. 309 of the Constitution, it had statutory force and was binding on all the officers of the new Service.(2) At the time when the 1964 order was passed the Government deliberately did not frame any rules in order to determine the inter se seniority of the members of the new Service but reserve d the right to do so.(3) It was under the order dated February 20, 1965 that for the first time the Rules of 1945 were applied to the new Service and that too "unless otherwise ordered" i.e., purely on a provisional basis. The order of 1968 laid down the principles for fixing seniority and, being a statutory order, superseded all the Rules in question including Rules 17 and 18 of the 1945 Rules. It was further confirmed by the order dated l 8-12-1971.We, therefore, find ourselves unable to agree with the view taken by the High Court that direction (b) of the 1968 order should be struck down as being inconsistent with Rule 18 of the 194 5might further point out that having regard to the history of PMS I and P.M.S. II if Rule 18 of the 1945 Rules were applied to the parties and the 1968 order ignored, the resultant effect would be that equals and unequals would be treated similarly which would amount to a direct infraction of Articles 14 and 16 of theregard to these factors, it is obvious that the appellants and the petitioners were not similarly situate and if the petitioners were put above the appellants in the matter of seniority, it would have resulted in a gross and wholly unreasonable discrimination by making junior officers senior to superiornumber of authorities were cited before us on the question of the principles of seniority but they are not at all applicable to the peculiar facts of the present case which have special features of their own and we have therefore not considered it necessary to deal with thoseregards the case of appellant No. 8, Dr. Sudhir Gupta, it stands on an altogether different. footing which is even higher than those of appellants 1 to 7. To begin with this appellant was recruited directly to PMS I from PMS II through the Public Service Commission on 13-7-1959. He actually joined the PMS I Service on 11-11-1959. He passed M.B.B.S. in 1954 and was among the first ten candidates. In 1956, he obtained Child Health Diploma. Thus, in all respect the case of appellant No. 8 is exactly similar to that of the other appellants with this difference that he was appointed to PMS I about five years before the PMS II was merged into PMS l and there fore the petitioners could not claim seniority over him. | 1 | 7,964 | 2,044 | ### 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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in the list of the officers by direct recruitment in 1957 batch.Note: 1. The lists of the officers by direct recruitment and by promotion will contain only the names who were appointed temporary and permanent in PMS (I) with the approval of the Public Service Commission.2. In accordance with the aforesaid principles G the names of the officers will be placed in the list by direct recruitment after approval by the Commission for regular appointment.3. The names of the officers will be placed in the list of promotee officers in order of the determined seniority in accordance with the above mentioned principles G vide notification No. 2780 K/5/247/57 dated the 13th June 1963."24. It was in consequence of these directions that the Government by virtue of the order impugned fixed the seniority of the members of the new Service, placing the appellants above the petitioners and awarding to them the selection grade Prior to the petitioners.25. Thus, in short, the, heart of the matter is whether the order of 1968 as confirmed by the order dated 18-12-1971 was in any way inconsistent with Rules 17 and 18 of the 1945 Rules so as to nullify the mode of seniority adopted by the Government and the promotion to the selection grade made by it under the impugned order. In our opinion, the following propositions emerge from the history of the new service and the foregoing discussion:-(1) To begin with, the Rules of 194 5 had absolutely no application to the new Service. Those Rules applied to the old PMS I Service only and, therefore, to a situation completely different from that which prevailed after the merger of the two Services on 1-11-1964. As the Government order merging the two Services was also an order passed under Art. 309 of the Constitution, it had statutory force and was binding on all the officers of the new Service.(2) At the time when the 1964 order was passed the Government deliberately did not frame any rules in order to determine the inter se seniority of the members of the new Service but reserve d the right to do so.(3) It was under the order dated February 20, 1965 that for the first time the Rules of 1945 were applied to the new Service and that too "unless otherwise ordered" i.e., purely on a provisional basis. The order of 1968 laid down the principles for fixing seniority and, being a statutory order, superseded all the Rules in question including Rules 17 and 18 of the 1945 Rules. It was further confirmed by the order dated l 8-12-1971.We, therefore, find ourselves unable to agree with the view taken by the High Court that direction (b) of the 1968 order should be struck down as being inconsistent with Rule 18 of the 194 5 Rules.26. We might further point out that having regard to the history of PMS I and P.M.S. II if Rule 18 of the 1945 Rules were applied to the parties and the 1968 order ignored, the resultant effect would be that equals and unequals would be treated similarly which would amount to a direct infraction of Articles 14 and 16 of the Constitution. In order to illustrate our point we give below a chart showing the different attributes possessed by the two set of officers, namely, the appellants and the petitioners:-----------------------------------------------------------Appellants Petitioner-----------------------------------------------------------1. Appellants were direct 1. The Petitioners cases wererecruits to PMS I; sent for consideration by theappointed in a substan- selection Committee in Junetive capacity in a reg- 1963 but they were not consid-ular manner on the reco- erd fit for selection videmmendation of the Public the relevant extracts belowService Commission though from the Affidavit of Mukundto temporary posts. Swarup Srivastava. UpperDivision Assistant, MedicalSection, U.P. civilSecretariat:" All the petitioners who wereeligible for promotion wereeligible for promotion by thepublic Service Commission andthe Departmental SelectionCommittee in the mannerprescribed, vide officememorandum dated May 15 , 1956as modified byOffice memorandum datedDecember 18, 1956. The casesof the petitioners were notrecommended by the SelectionCommittee for promotion toProvincial Medical Service I."(Emphasis ours)2. The appellants were 2. The Petitioner belonged toadmittedly appointed by the PMS II which was a subordinate Governor to a higher Service, Service with a lower scale ;Viz., PMS I Carrying a higher their appointing authorityScale of pay with better being the Director, Medicalprospects and higher Service and not the Governor.responsibilities.3. At the time of appointment 3. The petitioner did not putto the selection grade the in the requisite experience inappellants had put in there- PMS I for promotion toquisite experience of more selection grade.than eight years in PMS Irequired for promotion to theselection grade.27. Having regard to these factors, it is obvious that the appellants and the petitioners were not similarly situate and if the petitioners were put above the appellants in the matter of seniority, it would have resulted in a gross and wholly unreasonable discrimination by making junior officers senior to superior officers.28. A number of authorities were cited before us on the question of the principles of seniority but they are not at all applicable to the peculiar facts of the present case which have special features of their own and we have therefore not considered it necessary to deal with those authorities.29. As regards the case of appellant No. 8, Dr. Sudhir Gupta, it stands on an altogether different. footing which is even higher than those of appellants 1 to 7. To begin with this appellant was recruited directly to PMS I from PMS II through the Public Service Commission on 13-7-1959. He actually joined the PMS I Service on 11-11-1959. He passed M.B.B.S. in 1954 and was among the first ten candidates. In 1956, he obtained Child Health Diploma. Thus, in all respect the case of appellant No. 8 is exactly similar to that of the other appellants with this difference that he was appointed to PMS I about five years before the PMS II was merged into PMS l and there fore the petitioners could not claim seniority over him.
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which the inter se seniority of the members of the two Services was to be determined in the new Service were laidwas in consonance with these directions that the Government fixed the seniority of appellants 1 to 7 and petitioners 1 to 12. So far as the appellants were concerned, they clearly fell within the ambit A of direction (b) which provided for officers appointed to PMS I either on a permanent or temporary basis prior to the merger in a regular manner in consultation with the Lok Sewa Ayog (Public Service Commission) in order of their seniority. It may be pertinent to note here that direction (b) does not speak of any substantive appointment whatsoever but equates the officers appointed to PMS I on permanent or temporary basis prior to merger. In other words, what the direction contemplates is that any officer appointed to a post whether permanent or temporary in PMS I which was the Senior Service prior to merger, would rank after merger above those officers who were drawn from PMS II. That the appellants fulfilled all the conditions mentioned in direction (b) is not disputed but the constitutionality of that direction was challenged before the High Court on the ground that it was inconsistent with Rule 18 of the 1945 Rules. This contention found favour with the High Court which held that direction (b) was invalid as being inconsistent with the Rules of 1945. In coming to this finding, the High Court appears to have overlooked the fact that the 1945. Rules did not apply to the new Service at its inception and that they were made applicable to the new Service only for a short while by virtue of the order dated 20th February 1965, purely on a provisional basis as the Government made it quite clear in that order itself that the 1945 Rule s will apply unless otherwise ordered and thus had reserved the right to pass final orders regarding seniority later which was done in 1968. In these circumstances, therefore, the order of the High Court suffers from twothat there was no real or apparent inconsistency between rule 18 of the 1945 Rules and the 1968 directions, .(ii) that initially the 1945 Rules ceased to apply to the new Service but were made applicable thereto only for a shortwhile by way of a stop-gap arrangement inHigh Court appears to have interpreted the directions of 1968 completely out of context. On the other hand, we feel that those directions seek to strike a just balance between the officers of the erstwhile Services after they were merged into the new Service. We shall immediately show that having regard to the exigencies of the situation created by the merger, no other mode of seniority , which was just and fair, could be evolved for the newour opinion, the following propositions emerge from the history of the new service and the foregoingTo begin with, the Rules of 194 5 had absolutely no application to the new Service. Those Rules applied to the old PMS I Service only and, therefore, to a situation completely different from that which prevailed after the merger of the two Services on 1-11-1964. As the Government order merging the two Services was also an order passed under Art. 309 of the Constitution, it had statutory force and was binding on all the officers of the new Service.(2) At the time when the 1964 order was passed the Government deliberately did not frame any rules in order to determine the inter se seniority of the members of the new Service but reserve d the right to do so.(3) It was under the order dated February 20, 1965 that for the first time the Rules of 1945 were applied to the new Service and that too "unless otherwise ordered" i.e., purely on a provisional basis. The order of 1968 laid down the principles for fixing seniority and, being a statutory order, superseded all the Rules in question including Rules 17 and 18 of the 1945 Rules. It was further confirmed by the order dated l 8-12-1971.We, therefore, find ourselves unable to agree with the view taken by the High Court that direction (b) of the 1968 order should be struck down as being inconsistent with Rule 18 of the 194 5might further point out that having regard to the history of PMS I and P.M.S. II if Rule 18 of the 1945 Rules were applied to the parties and the 1968 order ignored, the resultant effect would be that equals and unequals would be treated similarly which would amount to a direct infraction of Articles 14 and 16 of theregard to these factors, it is obvious that the appellants and the petitioners were not similarly situate and if the petitioners were put above the appellants in the matter of seniority, it would have resulted in a gross and wholly unreasonable discrimination by making junior officers senior to superiornumber of authorities were cited before us on the question of the principles of seniority but they are not at all applicable to the peculiar facts of the present case which have special features of their own and we have therefore not considered it necessary to deal with thoseregards the case of appellant No. 8, Dr. Sudhir Gupta, it stands on an altogether different. footing which is even higher than those of appellants 1 to 7. To begin with this appellant was recruited directly to PMS I from PMS II through the Public Service Commission on 13-7-1959. He actually joined the PMS I Service on 11-11-1959. He passed M.B.B.S. in 1954 and was among the first ten candidates. In 1956, he obtained Child Health Diploma. Thus, in all respect the case of appellant No. 8 is exactly similar to that of the other appellants with this difference that he was appointed to PMS I about five years before the PMS II was merged into PMS l and there fore the petitioners could not claim seniority over him.
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Inspector Assistant Commissioner Of Agricultural Income Ta Vs. V.K. Ramunni Panikkar, Receiver Of Zomorinestate | the sthanam property had been divided per capita immediately before the death of the sthanamdar among himself and all the members of his family then living, and the shares falling to the members of his family and the heirs of the sthanamdar shall be held by them as their separate property.""Explanation:- For the purposes of this sub-section the family of a sthanamdar shall include every branch of that family, whether divided or undivided, the male members of which would have been entitled by any custom or usage to succeed to the position of sthanamdar if this Act had not been passed." 5. We have considered the scope of this section in Civil Appeal No. 1137 of 1969, (reported in AIR 1971 SC 2392 ). Hence it is sufficient for our present purpose to state that in view of Section 7 (3) of the Hindu Succession Act, it must be held that on the death of Sreemanavikaraman Raja, each of the members of his tarwad took a per capita share in the sthanam property as co-owners and not as his heirs. His personal heirs took the share which the deceased was deemed to have got as his share when he was taking his last breath. Section 7 (3) of the Hindu Succession Act embodies a fiction. The purpose of that fiction was to gradually abolish the sthanams and to provide for the devolution of the sthanam properties on the members of sthanis tarwad except as regards one per capita share which the personal heirs of the sthanamdar are to inherit as the heirs of the sthanamdar. 6. The nature of a sthanam was considered by this Court in K. K. Kochuni v. State of Madras, (1960) 3 SCR 887 = (AIR 1960 SC 1080 ). Therein this Court observed that according to the custom, sthanam means a position of dignity and respect and for maintaining that position, properties were attached to that office and the same was held by the "stani". Stani is solely entitled to the income of that property during his lifetime. The senior most member of a tarwad usually become the sthanamdar of the sthanam attached to that tarwad. On his succession to stanom, he stood separated from the rest of the family. He solely became entitled to the stanom property but he gave up his right in the tarwad property. All the same he and the members of his tarwad had the same right of succession to the properties of each other as if his severance from the family had been the result not of his succession to the stanom, but a voluntary division between him and the rest of the family. 7. Whatever might have been the customary law, Section 7 (3) of the Hindu Succession Act the validity of which was not in issue before us by a fiction deems that the sthanam property stood divided amongst the stani and the members of his tarwad, a split second before his death. From the language of the section, it is clear that the members of the tarwad took the property as co-owners and not as the heirs of the deceased stani. This fiction was created for the purpose of providing for the devolution of the sthanam properties. The Act 28 of 1958 came into force only on May 12, 1958. Therefore that Act cannot have any effect on the sthanam with which we are concerned in this case because that sthanam stood destroyed on May 2, 1958. Hence we need not refer to the provisions of that Act. 8. The income of the sthanam property during November 1, 1956 to March 31, 1958 was the exclusive property of Sreemanavikaraman Raja. He was alone entitled to that income. Therefore he alone was liable to pay the tax.Under the Agricultural Income-tax Act, no charge is created on property in respect of the arrears of agricultural Income-tax. That being so the liability to pay the arrears of tax due from the deceased stani fell on his personal heirs and that only to the extent they received any of his assets. This position is clear from Sec. 24 (1) of the Act which provided that"when a person dies, his executor, administrator or other legal representative shall be liable to pay out of the estate of the deceased person to the extent to which the estate is capable of meeting the charge, the agricultural Income-tax assessed as payable by such person or any agricultural Income-tax which would have been payable by him under this Act, if he had not died." 9. The assessment made on Kunjunni Raja in his capacity as the successor sthanamdar was an invalid assessment. Legally he never became the sthanamdar. There was no sthanam after the death of Manavikraman Raja. With the death of Manavikraman Raja the sthanam came to an kind. The only persons who could have represented the estate of Sreemanavikraman Raja were his personal heirs. They were not made parties to the assessment. No notice of the assessment proceedings was given to them. Kanjunni Raja was not one of his legal representatives. Even if it is considered that the sthanam properties had devolved on the members of the tarwad by succession, Kanjunni Raja alone could not have represented the entire body of successors numbering 692. There was no question of any bona fide enquiry by the assessing authority. It was clearly a case of misunderstanding the legal position. Further, it does not appear that Kunjunni Raja was assessed as the legal representative of the deceased stani. He appears to have been assessed as the successor stani liable to pay the debts due from the estate. Hence the assessment was not made in accordance with law, See Income tax Officer, Kozhikode v. Mrs. Susheela Sadanandan, (1965) 57 ITR 168 (SC) . In this view of the matter it is not necessary for us to consider the other provisions of the Act providing for the assessment and collection of the tax due from a deceased person. | 0[ds]8. The income of the sthanam property during November 1, 1956 to March 31, 1958 was the exclusive property of Sreemanavikaraman Raja. He was alone entitled to that income. Therefore he alone was liable to pay the tax.Under the Agricultural Income-tax Act, no charge is created on property in respect of the arrears of agricultural Income-tax. That being so the liability to pay the arrears of tax due from the deceased stani fell on his personal heirs and that only to the extent they received any of his assets. This position is clear from Sec. 24 (1) of the Act which provided that"when a person dies, his executor, administrator or other legal representative shall be liable to pay out of the estate of the deceased person to the extent to which the estate is capable of meeting the charge, the agricultural Income-tax assessed as payable by such person or any agricultural Income-tax which would have been payable by him under this Act, if he had not died."9. The assessment made on Kunjunni Raja in his capacity as the successor sthanamdar was an invalid assessment. Legally he never became the sthanamdar. There was no sthanam after the death of Manavikraman Raja. With the death of Manavikraman Raja the sthanam came to an kind. The only persons who could have represented the estate of Sreemanavikraman Raja were his personal heirs. They were not made parties to the assessment. No notice of the assessment proceedings was given to them. Kanjunni Raja was not one of his legal representatives. Even if it is considered that the sthanam properties had devolved on the members of the tarwad by succession, Kanjunni Raja alone could not have represented the entire body of successors numbering 692. There was no question of any bona fide enquiry by the assessing authority. It was clearly a case of misunderstanding the legal position. Further, it does not appear that Kunjunni Raja was assessed as the legal representative of the deceased stani. He appears to have been assessed as the successor stani liable to pay the debts due from the estate. Hence the assessment was not made in accordance with law, See Income tax Officer, Kozhikode v. Mrs. Susheela Sadanandan, (1965) 57 ITR 168 (SC) . In this view of the matter it is not necessary for us to consider the other provisions of the Act providing for the assessment and collection of the tax due from a deceased person5. We have considered the scope of this section in Civil Appeal No. 1137 of 1969, (reported in AIR 1971 SC 2392 ). Hence it is sufficient for our present purpose to state that in view of Section 7 (3) of the Hindu Succession Act, it must be held that on the death of Sreemanavikaraman Raja, each of the members of his tarwad took a per capita share in the sthanam property ass and not as his heirs. His personal heirs took the share which the deceased was deemed to have got as his share when he was taking his last breath. Section 7 (3) of the Hindu Succession Act embodies a fiction. The purpose of that fiction was to gradually abolish the sthanams and to provide for the devolution of the sthanam properties on the members of sthanis tarwad except as regards one per capita share which the personal heirs of the sthanamdar are to inherit as the heirs of the sthanamdar7. Whatever might have been the customary law, Section 7 (3) of the Hindu Succession Act the validity of which was not in issue before us by a fiction deems that the sthanam property stood divided amongst the stani and the members of his tarwad, a split second before his death. From the language of the section, it is clear that the members of the tarwad took the property ass and not as the heirs of the deceased stani. This fiction was created for the purpose of providing for the devolution of the sthanam properties. The Act 28 of 1958 came into force only on May 12, 1958. Therefore that Act cannot have any effect on the sthanam with which we are concerned in this case because that sthanam stood destroyed on May 2, 1958. Hence we need not refer to the provisions of that Act. | 0 | 2,106 | 789 | ### Instruction:
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the sthanam property had been divided per capita immediately before the death of the sthanamdar among himself and all the members of his family then living, and the shares falling to the members of his family and the heirs of the sthanamdar shall be held by them as their separate property.""Explanation:- For the purposes of this sub-section the family of a sthanamdar shall include every branch of that family, whether divided or undivided, the male members of which would have been entitled by any custom or usage to succeed to the position of sthanamdar if this Act had not been passed." 5. We have considered the scope of this section in Civil Appeal No. 1137 of 1969, (reported in AIR 1971 SC 2392 ). Hence it is sufficient for our present purpose to state that in view of Section 7 (3) of the Hindu Succession Act, it must be held that on the death of Sreemanavikaraman Raja, each of the members of his tarwad took a per capita share in the sthanam property as co-owners and not as his heirs. His personal heirs took the share which the deceased was deemed to have got as his share when he was taking his last breath. Section 7 (3) of the Hindu Succession Act embodies a fiction. The purpose of that fiction was to gradually abolish the sthanams and to provide for the devolution of the sthanam properties on the members of sthanis tarwad except as regards one per capita share which the personal heirs of the sthanamdar are to inherit as the heirs of the sthanamdar. 6. The nature of a sthanam was considered by this Court in K. K. Kochuni v. State of Madras, (1960) 3 SCR 887 = (AIR 1960 SC 1080 ). Therein this Court observed that according to the custom, sthanam means a position of dignity and respect and for maintaining that position, properties were attached to that office and the same was held by the "stani". Stani is solely entitled to the income of that property during his lifetime. The senior most member of a tarwad usually become the sthanamdar of the sthanam attached to that tarwad. On his succession to stanom, he stood separated from the rest of the family. He solely became entitled to the stanom property but he gave up his right in the tarwad property. All the same he and the members of his tarwad had the same right of succession to the properties of each other as if his severance from the family had been the result not of his succession to the stanom, but a voluntary division between him and the rest of the family. 7. Whatever might have been the customary law, Section 7 (3) of the Hindu Succession Act the validity of which was not in issue before us by a fiction deems that the sthanam property stood divided amongst the stani and the members of his tarwad, a split second before his death. From the language of the section, it is clear that the members of the tarwad took the property as co-owners and not as the heirs of the deceased stani. This fiction was created for the purpose of providing for the devolution of the sthanam properties. The Act 28 of 1958 came into force only on May 12, 1958. Therefore that Act cannot have any effect on the sthanam with which we are concerned in this case because that sthanam stood destroyed on May 2, 1958. Hence we need not refer to the provisions of that Act. 8. The income of the sthanam property during November 1, 1956 to March 31, 1958 was the exclusive property of Sreemanavikaraman Raja. He was alone entitled to that income. Therefore he alone was liable to pay the tax.Under the Agricultural Income-tax Act, no charge is created on property in respect of the arrears of agricultural Income-tax. That being so the liability to pay the arrears of tax due from the deceased stani fell on his personal heirs and that only to the extent they received any of his assets. This position is clear from Sec. 24 (1) of the Act which provided that"when a person dies, his executor, administrator or other legal representative shall be liable to pay out of the estate of the deceased person to the extent to which the estate is capable of meeting the charge, the agricultural Income-tax assessed as payable by such person or any agricultural Income-tax which would have been payable by him under this Act, if he had not died." 9. The assessment made on Kunjunni Raja in his capacity as the successor sthanamdar was an invalid assessment. Legally he never became the sthanamdar. There was no sthanam after the death of Manavikraman Raja. With the death of Manavikraman Raja the sthanam came to an kind. The only persons who could have represented the estate of Sreemanavikraman Raja were his personal heirs. They were not made parties to the assessment. No notice of the assessment proceedings was given to them. Kanjunni Raja was not one of his legal representatives. Even if it is considered that the sthanam properties had devolved on the members of the tarwad by succession, Kanjunni Raja alone could not have represented the entire body of successors numbering 692. There was no question of any bona fide enquiry by the assessing authority. It was clearly a case of misunderstanding the legal position. Further, it does not appear that Kunjunni Raja was assessed as the legal representative of the deceased stani. He appears to have been assessed as the successor stani liable to pay the debts due from the estate. Hence the assessment was not made in accordance with law, See Income tax Officer, Kozhikode v. Mrs. Susheela Sadanandan, (1965) 57 ITR 168 (SC) . In this view of the matter it is not necessary for us to consider the other provisions of the Act providing for the assessment and collection of the tax due from a deceased person.
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8. The income of the sthanam property during November 1, 1956 to March 31, 1958 was the exclusive property of Sreemanavikaraman Raja. He was alone entitled to that income. Therefore he alone was liable to pay the tax.Under the Agricultural Income-tax Act, no charge is created on property in respect of the arrears of agricultural Income-tax. That being so the liability to pay the arrears of tax due from the deceased stani fell on his personal heirs and that only to the extent they received any of his assets. This position is clear from Sec. 24 (1) of the Act which provided that"when a person dies, his executor, administrator or other legal representative shall be liable to pay out of the estate of the deceased person to the extent to which the estate is capable of meeting the charge, the agricultural Income-tax assessed as payable by such person or any agricultural Income-tax which would have been payable by him under this Act, if he had not died."9. The assessment made on Kunjunni Raja in his capacity as the successor sthanamdar was an invalid assessment. Legally he never became the sthanamdar. There was no sthanam after the death of Manavikraman Raja. With the death of Manavikraman Raja the sthanam came to an kind. The only persons who could have represented the estate of Sreemanavikraman Raja were his personal heirs. They were not made parties to the assessment. No notice of the assessment proceedings was given to them. Kanjunni Raja was not one of his legal representatives. Even if it is considered that the sthanam properties had devolved on the members of the tarwad by succession, Kanjunni Raja alone could not have represented the entire body of successors numbering 692. There was no question of any bona fide enquiry by the assessing authority. It was clearly a case of misunderstanding the legal position. Further, it does not appear that Kunjunni Raja was assessed as the legal representative of the deceased stani. He appears to have been assessed as the successor stani liable to pay the debts due from the estate. Hence the assessment was not made in accordance with law, See Income tax Officer, Kozhikode v. Mrs. Susheela Sadanandan, (1965) 57 ITR 168 (SC) . In this view of the matter it is not necessary for us to consider the other provisions of the Act providing for the assessment and collection of the tax due from a deceased person5. We have considered the scope of this section in Civil Appeal No. 1137 of 1969, (reported in AIR 1971 SC 2392 ). Hence it is sufficient for our present purpose to state that in view of Section 7 (3) of the Hindu Succession Act, it must be held that on the death of Sreemanavikaraman Raja, each of the members of his tarwad took a per capita share in the sthanam property ass and not as his heirs. His personal heirs took the share which the deceased was deemed to have got as his share when he was taking his last breath. Section 7 (3) of the Hindu Succession Act embodies a fiction. The purpose of that fiction was to gradually abolish the sthanams and to provide for the devolution of the sthanam properties on the members of sthanis tarwad except as regards one per capita share which the personal heirs of the sthanamdar are to inherit as the heirs of the sthanamdar7. Whatever might have been the customary law, Section 7 (3) of the Hindu Succession Act the validity of which was not in issue before us by a fiction deems that the sthanam property stood divided amongst the stani and the members of his tarwad, a split second before his death. From the language of the section, it is clear that the members of the tarwad took the property ass and not as the heirs of the deceased stani. This fiction was created for the purpose of providing for the devolution of the sthanam properties. The Act 28 of 1958 came into force only on May 12, 1958. Therefore that Act cannot have any effect on the sthanam with which we are concerned in this case because that sthanam stood destroyed on May 2, 1958. Hence we need not refer to the provisions of that Act.
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EXPERION DEVELOPERS PVT. LTD Vs. SUSHMA ASHOK SHIROOR | context, the observation of this Court in Pioneer Urban Land Infrastructure Ltd v. Union of India [Pioneer Urban Land Infrastructure Ltd. & Anr. v. Union of India & Ors. (2019) 8 SCC 416] where the Court was called upon to consider the provisions of Insolvency and Bankruptcy Code, 2016, the RERA Act, 2016 and the Consumer Protection Act, 1986 is noteworthy: 100. RERA is to be read harmoniously with the Code, as amended by the Amendment Act. It is only in the event of conflict that the code will prevail over RERA. Remedies that are given to allottees of flats/apartments are therefore concurrent remedies, such allottees of flats/apartments being in a position to avail of remedies under the Consumer Protection Act, 1986, RERA as well as the triggering of the Code. 15. We may hasten to clarify that the power to direct refund of the amount and to compensate a consumer for the deficiency in not delivering the apartment as per the terms of Agreement is within the jurisdiction of the Consumer Courts. Under Section 14 of the Consumer Protection Act, if the Commission is satisfied …that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to, return to the complainant the price or as the case may be, the charges paid by the complainant. Deficiency is defined under Section 2(g) to include any shortcoming or inadequacy in performance which has been undertaken by a person in pursuance of a contract or otherwise relating to any service. These two provisions are reproduced hereinbelow for ready reference. It is clear from the statutory position that the Commission is empowered to direct refund of the price or the charges paid by the consumer. 16. A consumer invoking the jurisdiction of the Commission can seek such reliefs as he/she considers appropriate. A consumer can pray for refund of the money with interest and compensation. The consumer could also ask for possession of the apartment with compensation. The consumer can also make a prayer for both in the alternative. If a consumer prays for refund of the amount, without an alternative prayer, the Commission will recognize such a right and grant it, of course subject to the merits of the case. If a consumer seeks alternative reliefs, the Commission will consider the matter in the facts and circumstances of the case and will pass appropriate orders as justice demands. This position is similar to the mandate under Section 18 of the RERA Act with respect to which the Court clarified the position in Para 25 of Imperia case referred to herein above. 17. We have referred to the legal regime under the Consumer Protection Act, only to show that the Commission has the power and jurisdiction to direct return of money under Section 14 of the Consumer Protection Act, if a consumer so chooses. The freedom to choose the necessary relief is of the Consumer and it is the duty of the Courts to honour it. 18. The Consumer in present case prayed for the solitary relief for return of the amount paid towards purchase of the apartment without a prayer for alternate relief. Recognizing the right of the Consumer for return of the amount with interest and compensation, the Commission passed an order directing the Developer as under: The opposite party shall refund an amount of Rs.2,06,41,379/- paid by the complainant along with interest @ 9% p.a. from the date of last deposit before the due date of possession till actual payment on the amount paid before due date of possession and after this date if any amount is deposited, then from the date of deposit till actual payment. 19. For the reasons stated above, we are of the opinion that the Commission has correctly exercises its power and jurisdiction in passing the above directions for refund of the amount with interest. Re : Issue No. III 20. In the appeal filed by the Consumer, the learned counsel prayed that: (i) the payment of interest must be from the date of payment of each instalment and (ii) the rate of interest must be 24% p.a. He has referred to the dates on which he has made payments, and sought interest from the said dates: Details of payment made to the respondent: - Date Particulars Cheque Amount TDS Amount Total Amount 09.06.2012 State Bank of India Ch. No. 976226 11,00,000.00 Nil/NA 11,00,000.00 08.08.2012 State Bank of India Ch. No. 976245 11,98,457.00 Nil/NA 11,98,457.00 16.01.2013 State Bank of India Ch. No. 976251 17,81,531.00 Nil/NA 17,81,531.00 02.09.2013 State Bank of India Ch. No. 602777 17,74,289.00 17,923.00 17,92,212.00 16.01.2014 State Bank of India Ch. No. 506049 17,74,290.00 17,923.00 17,92,213.00 19.04.2014 State Bank of India Ch. No. 506055 17,74,290.00 17,923.00 17,92,213.00 24.07.2014 Punjab National Bank Ch. No. 806197 14,56,709.00 14,714.00 14,71,423.00 22.09.2014 Punjab National Bank Ch. No. 806204 14,56,709.00 14,715.00 14,71,424.00 15.12.2014 Punjab National Bank Ch. No. 883394 14,56,706.00 14,715.00 14,71,421.00 09.02.2015 Punjab National Bank Ch. No. 212657 24,14,594.00 24,390.00 24,38,984.00 16.02.2015 EFT No. BKIDN15045404506 9,819.00 100.00 9,919.00 04.04.2015 EFT No. SBINR520150404130637 12,04,780.00 12,169.00 12,16,949.00 15.07.2015 EFT No. SBIN615196779388 6,44,134.00 10,135.00 6,54,269.00 14.08.2015 EFT No. SBIN815226374771 12,21,122.00 11,735.00 12,32,857.00 31.10.2015 EFT No. SBIN415304825817 11,92,402.00 11,735.00 12,04,137.00 08.06.2016 EFT No. 616019949933 13,370.00 Nil/NA 13,370.00 TOTAL: Rs. 2,06,41,379/- (Rupees Two Crore Six Lacs Forty One Thousand Three Hundred and Seventy Nine Only) 21. On the other hand, the Appellant-Developer submitted that (i) period for interest should be linked to the estimated date of possession and not the date of payments and (ii) the rate of interest must be the rate provided in the Interest Act, 1978. 22.1 We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. | 1[ds]8.2. In somewhat similar factual as well as legal context, this Court in Pioneer held as under:6.1 In the present case, admittedly the appellant builder obtained the occupancy certificate almost 2 years after the date stipulated in the apartment buyers agreement. As a consequence, there was a failure to hand over possession of the flat to the respondent flat purchaser within a reasonable period. The occupancy certificate was obtained after a delay of more than 2 years on 28-8-2018 during the pendency of the proceedings before the National Commission. In LDA v. M.K. Gupta, this Court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a service as defined by Section 2(o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. In Fortune Infrastructure v. Trevor DLima, this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.6.2 The respondent flat purchaser has made out a clear case of deficiency of service on the part of the appellant builder. The respondent flat purchaser was justified in terminating the apartment buyers agreement by filing the consumer complaint, and cannot be compelled to accept the possession whenever it is offered by the builder. The respondent purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation.6.3 The National Commission in the impugned order dated 23-10-2018 held that the clauses relied upon by the builder were wholly one-sided, unfair and unreasonable, and could not be relied upon……...6.8 A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the agreement dated 8-5-2012 are ex facie one-sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the builder.7. In view of the above discussion, we have no hesitation in holding that the terms of the apartment buyers agreement dated 8-5-2012 were wholly one-sided and unfair to the respondent flat purchaser. The appellant builder could not seek to bind the respondent with such one-sided contractual terms.9.1 The principle laid down in Pioneers case has been followed consistently in many cases where the terms of the Apartment Buyers Agreement were found to be one-sided and entirely loaded in favour of the Developer, and against the allottee at every step. The following are instances where the terms of the Apartment Buyers Agreement were found to be oppressive, constituting unfair trade practice and the Court has not given effect to such terms of the Agreement:9.2 In Arifur Rahman Khan v DLF Southern Homes Pvt. Ltd. [Wing Commander Arifur Rahman Khan and Aleya Sultana & Ors. v. DLF Southern Homes Private Limited (2020) 16 SCC 512] , this Court held that there is no embargo on the award of compensation beyond the rate stipulated in the Apartment Buyers Agreement where handing over the possession of the flat has been delayed. The Court observed that the Consumer Forums must take a robust and a common-sense approach by taking judicial notice of the fact that flat purchasers obtained loans and are required to pay EMIs to financial institutions for subserving their debts. The Delay Compensation Clause provided for Rs. 5 per square foot per month. This Court found that this stipulation is clearly one-sided and does not maintain a level platform or even reflect a bargain between the parties. The Court granted additional compensation @ 6% p.a. simple interest to each buyer therein, over and above the Delay Compensation Clause.9.4 A three-judge bench of this Court in IREO Grace Realtech (P) Ltd. V. Abhishek Khanna [IREO Grace Realtech (P) Ltd. v. Abhishek Khanna & Ors. (2021) 3 SCC 241] noticed the delay compensation clause, which is similar to the clause in the present case, which provided that the Developer would be liable to pay delay compensation @ Rs 7.5 per square foot which works out to approximately 0.9 to 1% p.a. The Court held that this Clause is one-sided and entirely loaded in favour of the Developer and against the allottee. The Court concluded that the powers of the Consumer Court were in no manner constrained to declare a contractual term as unfair and one-sided as an incident of the power to discontinue unfair or restrictive trade practices. It was held:34. We are of the view that the incorporation of such one-sided and unreasonable clauses in the apartment buyers Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An unfair contract has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act.35. In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the apartment buyers Agreement.10. Having examined various decisions of this Court which considered similar clauses in Apartment Buyers Agreement and following the ratio laid down in Pioneer case, the submission made on behalf of the Developer has to be rejected. We hold that the Commission is correct in its approach in holding that the clauses of the agreement are one-sided and that the Consumer is not bound to accept the possession of the apartment and can seek refund of the amount deposited by her with interest.12. This question is no more res integra. In Imperia Structures Ltd v. Anil Patni [Imperia Structures Ltd v. Anil Patni & Anr. (2020) 10 SCC 783] , this Court speaking through Justice Uday Umesh Lalit, examined the jurisdiction of Consumer Forums vis-a-vis the specific remedies created under the RERA Act. This judgment comprehensively deals with all aspects of parallel remedies available to the consumers under the Consumer Protection Act, 1986, and the RERA Act, 2016. In Imperia Structures, also, like in the present case, the proceedings arose out of the decision of the Commission under the Consumer Protection Act, 1986. After a comparative analysis of both the statutes, this Court held as under:23. It has consistently been held by this Court that the remedies available under the provisions of the CP Act are additional remedies over and above the other remedies including those made available under any special statutes; and that the availability of an alternate remedy is no bar in entertaining a complaint under the CP Act.24. Before we consider whether the provisions of the RERA Act have made any change in the legal position stated in the preceding paragraph, we may note that an allottee placed in circumstances similar to that of the Complainants, could have initiated the following proceedings before the RERA Act came into force:A) If he satisfied the requirements of being a consumer under the CP Act, he could have initiated proceedings under the CP Act in addition to normal civil remedies.B) However, if he did not fulfil the requirements of being a consumer, he could initiate and avail only normal civil remedies.C) If the agreement with the Developer or the builder provided for arbitration:-i) in cases covered under Clause (B) hereinabove, he could initiate or could be called upon to invoke the remedies in arbitration.ii) in cases covered under Clause (A) hereinabove, in accordance with law laid down in Emaar MGF Land Ltd. Vs. Aftab Singh, he could still choose to proceed under the CP Act.25. In terms of Section 18 of the RERA Act, if a promoter fails to complete or is unable to give possession of an apartment duly completed by the date specified in the agreement, the promoter would be liable, on demand, to return the amount received by him in respect of that apartment if the allottee wishes to withdraw from the Project. Such right of an allottee is specifically made without prejudice to any other remedy available to him. The right so given to the allottee is unqualified and if availed, the money deposited by the allottee has to be refunded with interest at such rate as may be prescribed. The proviso to Section 18(1) contemplates a situation where the allottee does not intend to withdraw from the Project. In that case he is entitled to and must be paid interest for every month of delay till the handing over of the possession. It is up to the allottee to proceed either under Section 18(1) or under proviso to Section 18(1). The case of Himanshu Giri came under the latter category. The RERA Act thus definitely provides a remedy to an allottee who wishes to withdraw from the Project or claim return on his investment.26. It is, therefore, required to be considered whether the remedy so provided under the RERA Act to an allottee is the only and exclusive modality to raise a grievance and whether the provisions of the RERA Act bar consideration of the grievance of an allottee by other fora.30. On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint.34. It is true that some special authorities are created under the RERA Act for the regulation and promotion of the real estate sector and the issues concerning a registered project are specifically entrusted to functionaries under the RERA Act. But for the present purposes, we must go by the purport of Section 18 of the RERA Act. Since it gives a right without prejudice to any other remedy available, in effect, such other remedy is acknowledged and saved subject always to the applicability of Section 79.37. We may now consider the effect of the registration of the Project under the RERA Act. In the present case the apartments were booked by the Complainants in 2011- 2012 and the Builder Buyer Agreements were entered into in November, 2013. As promised, the construction should have been completed in 42 months. The period had expired well before the Project was registered under the provisions of the RERA Act. Merely because the registration under the RERA Act is valid till 31.12.2020 does not mean that the entitlement of the allottees concerned to maintain an action stands deferred. It is relevant to note that even for the purposes of Section 18, the period has to be reckoned in terms of the agreement and not the registration. Condition (x) of the letter dated 17.11.2017 also entitles an allottee in same fashion. Therefore, the entitlement of the Complainants must be considered in the light of the terms of the builder buyer agreements and was rightly dealt with by the Commission.13.1 In view of the clear and categorical principles laid down in Imperia, the submissions made on behalf of the Developer have to be rejected. This position has also been affirmed in IREO Grace (supra). In IREO Grace (supra) this Court had an occasion to consider the question as to whether, the provisions of the RERA Act, must be given primacy over the Consumer Protection Act, 1986. After re-examining the provisions of Consumer Protection Act, 1986 and the RERA Act, and following the principles laid down in Imperia the Court held as under :-37. We will now consider the provisions of the RERA Act, which was brought into force on 01.05.2016. The Statement of Objects and Reasons of the RERA Act, 2016 read as follows:-The Statement of Objects and Reasons – The real estate sector plays a catalytic role in fulfilling the need and demand for housing and infrastructure in the country. While this sector has grown significantly in recent years, it has been largely unregulated, with absence of professionalism and standardization and lack of adequate consumer protection. Though the Consumer Protection Act, 1986 is available as a forum to the buyers in the real estate market, the recourse is only curative and is not adequate to address all the concerns of buyers and promoters in that sector. The lack of standardization has been a constrained to the healthy and orderly growth of industry. Therefore, the need for regulating the sector has been emphasized in various forums.In view of the above, it becomes necessary to have a Central legislation, namely, the Real Estate (Regulation and Development) Bill, 2013 in the interests of effective consumer protection, uniformity and standardization of business practices and the transactions in the real estate sector. The proposed Bill provides for the establishment of the Real Estate Regulatory Authority (the Authority) for regulation and promotion of real estate sector and to ensure sale of plot, apartment or building, as the case may be, in an efficient and transparent manner and to protect the interest of consumers in real estate sector and establish the Real Estate Appellate Tribunal to hear appeals from the decisions, directions or orders of the Authority.37.1. Section 18 of the RERA Act, 2016 provides the remedy of refund with interest and compensation to allottees, when a developer fails to complete the construction or give possession as per the agreement of sale. The remedies under Section 18 are without prejudice to any other remedy available.13.2 In coming to its conclusions, the three-Judge bench relied on the judgment of Imperia which clarified and declared that Section 18 of the RERA Act imposed a liability on the promoter to return the amount with interest to the allottee upon its failure to give possession in accordance with the terms of the agreement. The expression without prejudice to any other remedy available in Section 18 of the RERA Act is very important and while noting the same the Court observed as under:42. In a recent judgment delivered by this Court in Imperia Structures Ltd. v. Anil Patni, it was held that remedies under the Consumer Protection Act were in addition to the remedies available under special statutes. The absence of a bar under Section 79 of the r to the initiation of proceedings before a fora which is not a civil court, read with Section 88 of the RERA Act makes the position clear. Section 18 of the RERA Act specifies that the remedies are without prejudice to any other remedy available. We place reliance on this judgment..…14.1 From the two decisions referred to by us, it is crystal clear that the Consumer Protection Act and the RERA Act neither exclude nor contradict each other. In fact, this Court has held that they are concurrent remedies operating independently and without primacy. When Statutes provisioning judicial remedies fall for construction, the choice of the interpretative outcomes should also depend on the constitutional duty to create effective judicial remedies in furtherance of access to justice. A meaningful interpretation that effectuates access to justice is a constitutional imperative and it is this duty that must inform the interpretative criterion.14.3 In this context, the observation of this Court in Pioneer Urban Land Infrastructure Ltd v. Union of India [Pioneer Urban Land Infrastructure Ltd. & Anr. v. Union of India & Ors. (2019) 8 SCC 416] where the Court was called upon to consider the provisions of Insolvency and Bankruptcy Code, 2016, the RERA Act, 2016 and the Consumer Protection Act, 1986 is noteworthy:100. RERA is to be read harmoniously with the Code, as amended by the Amendment Act. It is only in the event of conflict that the code will prevail over RERA. Remedies that are given to allottees of flats/apartments are therefore concurrent remedies, such allottees of flats/apartments being in a position to avail of remedies under the Consumer Protection Act, 1986, RERA as well as the triggering of the Code.15. We may hasten to clarify that the power to direct refund of the amount and to compensate a consumer for the deficiency in not delivering the apartment as per the terms of Agreement is within the jurisdiction of the Consumer Courts. Under Section 14 of the Consumer Protection Act, if the Commission is satisfied …that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to, return to the complainant the price or as the case may be, the charges paid by the complainant. Deficiency is defined under Section 2(g) to include any shortcoming or inadequacy in performance which has been undertaken by a person in pursuance of a contract or otherwise relating to any service. These two provisions are reproduced hereinbelow for ready reference. It is clear from the statutory position that the Commission is empowered to direct refund of the price or the charges paid by the consumer.18. The Consumer in present case prayed for the solitary relief for return of the amount paid towards purchase of the apartment without a prayer for alternate relief. Recognizing the right of the Consumer for return of the amount with interest and compensation, the Commission passed an order directing the Developer as under:The opposite party shall refund an amount of Rs.2,06,41,379/- paid by the complainant along with interest @ 9% p.a. from the date of last deposit before the due date of possession till actual payment on the amount paid before due date of possession and after this date if any amount is deposited, then from the date of deposit till actual payment.19. For the reasons stated above, we are of the opinion that the Commission has correctly exercises its power and jurisdiction in passing the above directions for refund of the amount with interest.22.1 We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. | 1 | 6,317 | 3,389 | ### 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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context, the observation of this Court in Pioneer Urban Land Infrastructure Ltd v. Union of India [Pioneer Urban Land Infrastructure Ltd. & Anr. v. Union of India & Ors. (2019) 8 SCC 416] where the Court was called upon to consider the provisions of Insolvency and Bankruptcy Code, 2016, the RERA Act, 2016 and the Consumer Protection Act, 1986 is noteworthy: 100. RERA is to be read harmoniously with the Code, as amended by the Amendment Act. It is only in the event of conflict that the code will prevail over RERA. Remedies that are given to allottees of flats/apartments are therefore concurrent remedies, such allottees of flats/apartments being in a position to avail of remedies under the Consumer Protection Act, 1986, RERA as well as the triggering of the Code. 15. We may hasten to clarify that the power to direct refund of the amount and to compensate a consumer for the deficiency in not delivering the apartment as per the terms of Agreement is within the jurisdiction of the Consumer Courts. Under Section 14 of the Consumer Protection Act, if the Commission is satisfied …that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to, return to the complainant the price or as the case may be, the charges paid by the complainant. Deficiency is defined under Section 2(g) to include any shortcoming or inadequacy in performance which has been undertaken by a person in pursuance of a contract or otherwise relating to any service. These two provisions are reproduced hereinbelow for ready reference. It is clear from the statutory position that the Commission is empowered to direct refund of the price or the charges paid by the consumer. 16. A consumer invoking the jurisdiction of the Commission can seek such reliefs as he/she considers appropriate. A consumer can pray for refund of the money with interest and compensation. The consumer could also ask for possession of the apartment with compensation. The consumer can also make a prayer for both in the alternative. If a consumer prays for refund of the amount, without an alternative prayer, the Commission will recognize such a right and grant it, of course subject to the merits of the case. If a consumer seeks alternative reliefs, the Commission will consider the matter in the facts and circumstances of the case and will pass appropriate orders as justice demands. This position is similar to the mandate under Section 18 of the RERA Act with respect to which the Court clarified the position in Para 25 of Imperia case referred to herein above. 17. We have referred to the legal regime under the Consumer Protection Act, only to show that the Commission has the power and jurisdiction to direct return of money under Section 14 of the Consumer Protection Act, if a consumer so chooses. The freedom to choose the necessary relief is of the Consumer and it is the duty of the Courts to honour it. 18. The Consumer in present case prayed for the solitary relief for return of the amount paid towards purchase of the apartment without a prayer for alternate relief. Recognizing the right of the Consumer for return of the amount with interest and compensation, the Commission passed an order directing the Developer as under: The opposite party shall refund an amount of Rs.2,06,41,379/- paid by the complainant along with interest @ 9% p.a. from the date of last deposit before the due date of possession till actual payment on the amount paid before due date of possession and after this date if any amount is deposited, then from the date of deposit till actual payment. 19. For the reasons stated above, we are of the opinion that the Commission has correctly exercises its power and jurisdiction in passing the above directions for refund of the amount with interest. Re : Issue No. III 20. In the appeal filed by the Consumer, the learned counsel prayed that: (i) the payment of interest must be from the date of payment of each instalment and (ii) the rate of interest must be 24% p.a. He has referred to the dates on which he has made payments, and sought interest from the said dates: Details of payment made to the respondent: - Date Particulars Cheque Amount TDS Amount Total Amount 09.06.2012 State Bank of India Ch. No. 976226 11,00,000.00 Nil/NA 11,00,000.00 08.08.2012 State Bank of India Ch. No. 976245 11,98,457.00 Nil/NA 11,98,457.00 16.01.2013 State Bank of India Ch. No. 976251 17,81,531.00 Nil/NA 17,81,531.00 02.09.2013 State Bank of India Ch. No. 602777 17,74,289.00 17,923.00 17,92,212.00 16.01.2014 State Bank of India Ch. No. 506049 17,74,290.00 17,923.00 17,92,213.00 19.04.2014 State Bank of India Ch. No. 506055 17,74,290.00 17,923.00 17,92,213.00 24.07.2014 Punjab National Bank Ch. No. 806197 14,56,709.00 14,714.00 14,71,423.00 22.09.2014 Punjab National Bank Ch. No. 806204 14,56,709.00 14,715.00 14,71,424.00 15.12.2014 Punjab National Bank Ch. No. 883394 14,56,706.00 14,715.00 14,71,421.00 09.02.2015 Punjab National Bank Ch. No. 212657 24,14,594.00 24,390.00 24,38,984.00 16.02.2015 EFT No. BKIDN15045404506 9,819.00 100.00 9,919.00 04.04.2015 EFT No. SBINR520150404130637 12,04,780.00 12,169.00 12,16,949.00 15.07.2015 EFT No. SBIN615196779388 6,44,134.00 10,135.00 6,54,269.00 14.08.2015 EFT No. SBIN815226374771 12,21,122.00 11,735.00 12,32,857.00 31.10.2015 EFT No. SBIN415304825817 11,92,402.00 11,735.00 12,04,137.00 08.06.2016 EFT No. 616019949933 13,370.00 Nil/NA 13,370.00 TOTAL: Rs. 2,06,41,379/- (Rupees Two Crore Six Lacs Forty One Thousand Three Hundred and Seventy Nine Only) 21. On the other hand, the Appellant-Developer submitted that (i) period for interest should be linked to the estimated date of possession and not the date of payments and (ii) the rate of interest must be the rate provided in the Interest Act, 1978. 22.1 We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution.
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as a forum to the buyers in the real estate market, the recourse is only curative and is not adequate to address all the concerns of buyers and promoters in that sector. The lack of standardization has been a constrained to the healthy and orderly growth of industry. Therefore, the need for regulating the sector has been emphasized in various forums.In view of the above, it becomes necessary to have a Central legislation, namely, the Real Estate (Regulation and Development) Bill, 2013 in the interests of effective consumer protection, uniformity and standardization of business practices and the transactions in the real estate sector. The proposed Bill provides for the establishment of the Real Estate Regulatory Authority (the Authority) for regulation and promotion of real estate sector and to ensure sale of plot, apartment or building, as the case may be, in an efficient and transparent manner and to protect the interest of consumers in real estate sector and establish the Real Estate Appellate Tribunal to hear appeals from the decisions, directions or orders of the Authority.37.1. Section 18 of the RERA Act, 2016 provides the remedy of refund with interest and compensation to allottees, when a developer fails to complete the construction or give possession as per the agreement of sale. The remedies under Section 18 are without prejudice to any other remedy available.13.2 In coming to its conclusions, the three-Judge bench relied on the judgment of Imperia which clarified and declared that Section 18 of the RERA Act imposed a liability on the promoter to return the amount with interest to the allottee upon its failure to give possession in accordance with the terms of the agreement. The expression without prejudice to any other remedy available in Section 18 of the RERA Act is very important and while noting the same the Court observed as under:42. In a recent judgment delivered by this Court in Imperia Structures Ltd. v. Anil Patni, it was held that remedies under the Consumer Protection Act were in addition to the remedies available under special statutes. The absence of a bar under Section 79 of the r to the initiation of proceedings before a fora which is not a civil court, read with Section 88 of the RERA Act makes the position clear. Section 18 of the RERA Act specifies that the remedies are without prejudice to any other remedy available. We place reliance on this judgment..…14.1 From the two decisions referred to by us, it is crystal clear that the Consumer Protection Act and the RERA Act neither exclude nor contradict each other. In fact, this Court has held that they are concurrent remedies operating independently and without primacy. When Statutes provisioning judicial remedies fall for construction, the choice of the interpretative outcomes should also depend on the constitutional duty to create effective judicial remedies in furtherance of access to justice. A meaningful interpretation that effectuates access to justice is a constitutional imperative and it is this duty that must inform the interpretative criterion.14.3 In this context, the observation of this Court in Pioneer Urban Land Infrastructure Ltd v. Union of India [Pioneer Urban Land Infrastructure Ltd. & Anr. v. Union of India & Ors. (2019) 8 SCC 416] where the Court was called upon to consider the provisions of Insolvency and Bankruptcy Code, 2016, the RERA Act, 2016 and the Consumer Protection Act, 1986 is noteworthy:100. RERA is to be read harmoniously with the Code, as amended by the Amendment Act. It is only in the event of conflict that the code will prevail over RERA. Remedies that are given to allottees of flats/apartments are therefore concurrent remedies, such allottees of flats/apartments being in a position to avail of remedies under the Consumer Protection Act, 1986, RERA as well as the triggering of the Code.15. We may hasten to clarify that the power to direct refund of the amount and to compensate a consumer for the deficiency in not delivering the apartment as per the terms of Agreement is within the jurisdiction of the Consumer Courts. Under Section 14 of the Consumer Protection Act, if the Commission is satisfied …that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to, return to the complainant the price or as the case may be, the charges paid by the complainant. Deficiency is defined under Section 2(g) to include any shortcoming or inadequacy in performance which has been undertaken by a person in pursuance of a contract or otherwise relating to any service. These two provisions are reproduced hereinbelow for ready reference. It is clear from the statutory position that the Commission is empowered to direct refund of the price or the charges paid by the consumer.18. The Consumer in present case prayed for the solitary relief for return of the amount paid towards purchase of the apartment without a prayer for alternate relief. Recognizing the right of the Consumer for return of the amount with interest and compensation, the Commission passed an order directing the Developer as under:The opposite party shall refund an amount of Rs.2,06,41,379/- paid by the complainant along with interest @ 9% p.a. from the date of last deposit before the due date of possession till actual payment on the amount paid before due date of possession and after this date if any amount is deposited, then from the date of deposit till actual payment.19. For the reasons stated above, we are of the opinion that the Commission has correctly exercises its power and jurisdiction in passing the above directions for refund of the amount with interest.22.1 We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution.
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Narayanlal Bansilal Vs. Maneck Phiroze Mistry & Another | at all reasonable times.So here the use of this evidence was confined to civil proceedings. But now by the new Act under S. 478 this evidence can be used in all proceedings, thus bringing our provisions in line with the English law, and with regard to the impugned provision of our Companies Act, S. 167 of the English Act on which our Act is based provides also for evidence given in the course of investigation being used against the person, giving the testimony. The only difference between the English Act and our Act is that under the English Act this provision could only be used when the person is examined by Court. In our Act the provision applies whether the person is examined by the Inspector or by the Court. Therefore, wider powers have been taken by the Legislature under our law, and the view of Buckley, to which respect, must be paid, is that this provision is similar to the provision with regard to the Bankruptcy Act and apparently the person who is under examination cannot refuse to answer questions on the ground that the answer may incriminate himself.27. We must not fail to notice one argument which was advanced by Mr. Manecksha which has a bearing both on this aspect of the case and on the next aspect which we will presently consider, that the present provisions are so stringent and according to him so barbarous that they put his client in a worse position than if the police were actually investigating into an offence committed by him. He says that if there was a police investigation, any statements made by him in the course of investigation would not be evidence. He further says that if there was a judicial proceeding, then under S. 132, although he was compelled to answer, protection was given by the provisions of the Act. Now, the answer to that complaint is two-fold. The first is, as we have already stated, that this is not an investigation into an offence, in which case the rights of the accused are safeguarded by the provisions of the Criminal Procedure Code, and, as the Advocate General pointed out, in our opinion under the Companies Act when we come to actual prosecution the Legislature is at pains to provide that assistance should be given by everyone concerned for the purpose of the prosecution except the accused in the proceedings. Therefore, when we reach that stage, the safeguards rightly afforded by our Criminal Procedure Code are given to the person concerned. With regard to the Evidence Act, in terms the Act applies to Judicial proceedings. It does not apply to a proceeding which is not judicial. It is an adjectival law which can be qualified and modified by the substantive law of the country. It undoubtedly happens that in a non-judicial proceeding a person who is being examined cannot claim the privilege of the benefit of S. 132. But even in a judicial proceeding it would be open to the Legislature to provide that the adjectival law should be altered if it can be done undoubtedly consistent with the provisions of Art. 20(3) of the Constitution.28. Having taken all the circumstances into consideration we have come to the conclusion that Art. 20(3) has no application to the facts of this case. There is no accusation in the sense in which we have construed that expression, viz., a formal accusation, and inasmuch as there is no accusation, the compulsion introduced by the provision of the Companies Act which is impugned is not a compulsion which can be struck down by this provision of the Constitution. We may also add that in giving this restricted meaning to the Constitutional safeguard, we have carefully weighed the rights of the individual against the interest of the public and of the State. In our opinion, it is the duty of the Court, to the extent that it can legitimately do without doing violence to the language used by the Constitution makers, to arrive at a solution which, while maintaining the rights of the individual as far as possible, does not overlook the rights which the public and the State are entitled to claim.29. Turning to the third head of Mr. Maneckshas argument, it can to very briefly disposed of. The argument is based on Art. 14. Now, there are very few articles of the Constitution which have received so much attention by different Courts as Art. 14 and it is unnecessary to repeat what has been laid down as the basis of classification which will prevent the application of that Article. What is urged in this case is that there is no equality before the law because a person who is being examined under the provision of the Companies Act does not get the protection which another person is entitled to under S. 132 of the Evidence Act, and it is also said that this particular company or this particular managing agent has been picked out for special treatment and thereby there has been discrimination The latter part of the argument, as Mr. Manecksha fairly conceded, is now conclusively answered in Dalmias case by the Supreme Court in Shri Ram Krishna Dalmia v. Justice Tendolkar, AIR J958 SC 538. That Mr. Manechksha says, is true as far as the challenge to S. 239 is concerned, but he says that the challenge to S. 240(5) still remains and that has not been considered by the Supreme Court.In our opinion, it is impossible to urge that there is discrimination and that there is no proper classification on a rational basis, when an important system of law as the English system recognises these exceptions as pointed out both in Insolvency law and Company Law. Therefore, if our law makes a distinction between the rights of persons who are examined under the provisions of the Company Law and the rights of persons under other laws, it cannot be said that that classification is without a rational basis. | 0[ds]we have an Inspector appointed under S. 138 of the Act of 1913.He had carried on part of his investigation under S. 140. By reason of this section his appointment is to continue in force and if his appointment could have been made under the Act of 1956 it shall have effect as if it was made under this Act. Now, undoubtedly, under this Act an Inspector could have been appointed under S. 235, and therefore what S. 645 does is by a legal fiction to equate the appointment of the Inspector under S. 138 with his appointment under S. 235. Therefore, we must look upon the Inspector as being appointed under S. 235 if the legal fiction is to have full effect. Then, obviously, it is not necessary to make a fresh appointment. If it was necessary to make a fresh appointment, there was no need for the legal fiction. Therefore the law looks upon the Inspector, the first respondent, as being appointed under S. 235 after the Act of 1956 came into force, and if he is appointed under S. 235 then with the prior approval of Government under S. 239(2) he can exercise the powers under S.our opinion, S. 646 does not furnish any answer to the plain interpretation of S. 645 which, as already pointed out, does cover the case of an Inspector appointed under S. 138 of the old Act. We refuse to read S. 646 as being an exception to the provision made in S. 645 that all appointments made under the old Act should be deemed to be appointments made under the newit is nothing more than a reproduction in substance of S. 6 of the General Clauses Act. Having continued that appointment, according to the Advocate General, the latter part of S. 646 deals with the powers of the inspector and in dealing with that itwide enough to include the powers conferred upon the inspector under the new Act under S. 239. In view of what we have held with regard to the effect of S. 646, it is unnecessary to decide whether the expression "in relation to" is of such wide import as to cover the conferment of power upon an inspector under S.is again unnecessary for us to express any opinion on this argument as, the first answer given by the Advocate General is sufficient to dispose of the first contention of theArt. 20(3), as Mr. Manecksha has rightly pointed out, that limitation does not appear. The protection against this compulsion under our Constitution is general. It is not confined to any particular criminal case as would appear if Art. 20(3) were to be read by itself. But in construing Art. 20(3) we must adopt certain canons of construction. The first and the obvious one is to read the Article as a whole and not to divorce Cl. (3) of that Article from the rest of it. The second is that we must not overlook the fact that the Constitution makers in India had knowledge not only of the American Constitution but also the principles of English common law and also the exceptions engrafted upon those principles. Finally, we must give to this Article an interpretation which is for the greatest good of thethis case there is no doubt that the compulsion against which Article 20(3) affords protection is present because, as we have pointed out when we were looking at the scheme of the Act, under Section 240(5) there is provision for an obligation on the part of any person examined by an inspector or by the Court to answer questions put to him and the possibility of those answers being used in evidence against him and it is also clear that the he answers could be used in evidence against him although the answers may be of an. incriminatingis true, as pointed out by Mr. Manecksha in the various documents to which reference has already been made, that the appellant was charged with having misappropriated the funds of the company and having committed an offence under the Companies Act and also under the Indian Penal Code. In the sense that there was an allegation that he had done or omitted to do something which was against the law, undoubtedly he was accused of an offence. But it would be stretching the language too far to suggest that there was any formal accusation against the appellant. Nor would it be true to say that the accusation was either before a criminal Court or tribunal or was with reference to a criminal proceeding. Nor would it be true to suggest, looking to the provisions of the Criminal Procedure Code, that this accusation in the normal course would result in prosecution. It is fallacious to suggest that the only object of the inquiry and the only purpose of the report was to launch a prosecution under S. 242 of the Companies Act. It was left to the discretion of the Central Government under S. 242 to launch or not to launch a prosecution, and, as we shall point out in another context, the report of the Inspector and the inquiry held by him serve under the Companies Act many more important purposes than the mere prosecution of a defaulting managing agent or a defaultingAdvocate General has taken us through the provisions of the Public Servants (Inquiries) Act, 1850, and that Act does suggest from the language used in the various sections with regard to the framing of the charge and the person against whom the inquiry is being held as being described as an accused, that the inquiry was more or less similar to a criminal proceeding. It is also true that we do not find any provision in that Act which makes the accused a compellable witness, and therefore the element of compulsory testimonial which we find in the Companies Act is absent and to that extent no question with regard to Art. 20(3) would arise when an inquiry is being held against a publicis clear on an examination of the provisions of the Companies Act that the scope and nature of the inquiry is not investigation into an offence. The scope and nature of the inquiry is investigation into the affairs of the company. It is equally clear that the report is not made for the purpose of a prosecution being launched by the Central Government and that the function of the Inspector is to express an opinion on the way the affairs of the company are conducted in order that appropriate action may be taken which action may take different forms like applications under the different sections of the Companies Act to which reference has been made or a prosecution under S. 242 of the Companiesthe answer to that complaint isThe first is, as we have already stated, that this is not an investigation into an offence, in which case the rights of the accused are safeguarded by the provisions of the Criminal Procedure Code, and, as the Advocate General pointed out, in our opinion under the Companies Act when we come to actual prosecution the Legislature is at pains to provide that assistance should be given by everyone concerned for the purpose of the prosecution except the accused in the proceedings. Therefore, when we reach that stage, the safeguards rightly afforded by our Criminal Procedure Code are given to the person concerned. With regard to the Evidence Act, in terms the Act applies to Judicial proceedings. It does not apply to a proceeding which is not judicial. It is an adjectival law which can be qualified and modified by the substantive law of the country. It undoubtedly happens that in aproceeding a person who is being examined cannot claim the privilege of the benefit of S. 132. But even in a judicial proceeding it would be open to the Legislature to provide that the adjectival law should be altered if it can be done undoubtedly consistent with the provisions of Art. 20(3) of the Constitution.28. Having taken all the circumstances into consideration we have come to the conclusion that Art. 20(3) has no application to the facts of this case. There is no accusation in the sense in which we have construed that expression, viz., a formal accusation, and inasmuch as there is no accusation, the compulsion introduced by the provision of the Companies Act which is impugned is not a compulsion which can be struck down by this provision of the Constitution. We may also add that in giving this restricted meaning to the Constitutional safeguard, we have carefully weighed the rights of the individual against the interest of the public and of the State. In our opinion, it is the duty of the Court, to the extent that it can legitimately do without doing violence to the language used by the Constitution makers, to arrive at a solution which, while maintaining the rights of the individual as far as possible, does not overlook the rights which the public and the State are entitled toour opinion, it is impossible to urge that there is discrimination and that there is no proper classification on a rational basis, when an important system of law as the English system recognises these exceptions as pointed out both in Insolvency law and Company Law. Therefore, if our law makes a distinction between the rights of persons who are examined under the provisions of the Company Law and the rights of persons under other laws, it cannot be said that that classification is without a rational basis. | 0 | 15,559 | 1,735 | ### Instruction:
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at all reasonable times.So here the use of this evidence was confined to civil proceedings. But now by the new Act under S. 478 this evidence can be used in all proceedings, thus bringing our provisions in line with the English law, and with regard to the impugned provision of our Companies Act, S. 167 of the English Act on which our Act is based provides also for evidence given in the course of investigation being used against the person, giving the testimony. The only difference between the English Act and our Act is that under the English Act this provision could only be used when the person is examined by Court. In our Act the provision applies whether the person is examined by the Inspector or by the Court. Therefore, wider powers have been taken by the Legislature under our law, and the view of Buckley, to which respect, must be paid, is that this provision is similar to the provision with regard to the Bankruptcy Act and apparently the person who is under examination cannot refuse to answer questions on the ground that the answer may incriminate himself.27. We must not fail to notice one argument which was advanced by Mr. Manecksha which has a bearing both on this aspect of the case and on the next aspect which we will presently consider, that the present provisions are so stringent and according to him so barbarous that they put his client in a worse position than if the police were actually investigating into an offence committed by him. He says that if there was a police investigation, any statements made by him in the course of investigation would not be evidence. He further says that if there was a judicial proceeding, then under S. 132, although he was compelled to answer, protection was given by the provisions of the Act. Now, the answer to that complaint is two-fold. The first is, as we have already stated, that this is not an investigation into an offence, in which case the rights of the accused are safeguarded by the provisions of the Criminal Procedure Code, and, as the Advocate General pointed out, in our opinion under the Companies Act when we come to actual prosecution the Legislature is at pains to provide that assistance should be given by everyone concerned for the purpose of the prosecution except the accused in the proceedings. Therefore, when we reach that stage, the safeguards rightly afforded by our Criminal Procedure Code are given to the person concerned. With regard to the Evidence Act, in terms the Act applies to Judicial proceedings. It does not apply to a proceeding which is not judicial. It is an adjectival law which can be qualified and modified by the substantive law of the country. It undoubtedly happens that in a non-judicial proceeding a person who is being examined cannot claim the privilege of the benefit of S. 132. But even in a judicial proceeding it would be open to the Legislature to provide that the adjectival law should be altered if it can be done undoubtedly consistent with the provisions of Art. 20(3) of the Constitution.28. Having taken all the circumstances into consideration we have come to the conclusion that Art. 20(3) has no application to the facts of this case. There is no accusation in the sense in which we have construed that expression, viz., a formal accusation, and inasmuch as there is no accusation, the compulsion introduced by the provision of the Companies Act which is impugned is not a compulsion which can be struck down by this provision of the Constitution. We may also add that in giving this restricted meaning to the Constitutional safeguard, we have carefully weighed the rights of the individual against the interest of the public and of the State. In our opinion, it is the duty of the Court, to the extent that it can legitimately do without doing violence to the language used by the Constitution makers, to arrive at a solution which, while maintaining the rights of the individual as far as possible, does not overlook the rights which the public and the State are entitled to claim.29. Turning to the third head of Mr. Maneckshas argument, it can to very briefly disposed of. The argument is based on Art. 14. Now, there are very few articles of the Constitution which have received so much attention by different Courts as Art. 14 and it is unnecessary to repeat what has been laid down as the basis of classification which will prevent the application of that Article. What is urged in this case is that there is no equality before the law because a person who is being examined under the provision of the Companies Act does not get the protection which another person is entitled to under S. 132 of the Evidence Act, and it is also said that this particular company or this particular managing agent has been picked out for special treatment and thereby there has been discrimination The latter part of the argument, as Mr. Manecksha fairly conceded, is now conclusively answered in Dalmias case by the Supreme Court in Shri Ram Krishna Dalmia v. Justice Tendolkar, AIR J958 SC 538. That Mr. Manechksha says, is true as far as the challenge to S. 239 is concerned, but he says that the challenge to S. 240(5) still remains and that has not been considered by the Supreme Court.In our opinion, it is impossible to urge that there is discrimination and that there is no proper classification on a rational basis, when an important system of law as the English system recognises these exceptions as pointed out both in Insolvency law and Company Law. Therefore, if our law makes a distinction between the rights of persons who are examined under the provisions of the Company Law and the rights of persons under other laws, it cannot be said that that classification is without a rational basis.
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or by the Court to answer questions put to him and the possibility of those answers being used in evidence against him and it is also clear that the he answers could be used in evidence against him although the answers may be of an. incriminatingis true, as pointed out by Mr. Manecksha in the various documents to which reference has already been made, that the appellant was charged with having misappropriated the funds of the company and having committed an offence under the Companies Act and also under the Indian Penal Code. In the sense that there was an allegation that he had done or omitted to do something which was against the law, undoubtedly he was accused of an offence. But it would be stretching the language too far to suggest that there was any formal accusation against the appellant. Nor would it be true to say that the accusation was either before a criminal Court or tribunal or was with reference to a criminal proceeding. Nor would it be true to suggest, looking to the provisions of the Criminal Procedure Code, that this accusation in the normal course would result in prosecution. It is fallacious to suggest that the only object of the inquiry and the only purpose of the report was to launch a prosecution under S. 242 of the Companies Act. It was left to the discretion of the Central Government under S. 242 to launch or not to launch a prosecution, and, as we shall point out in another context, the report of the Inspector and the inquiry held by him serve under the Companies Act many more important purposes than the mere prosecution of a defaulting managing agent or a defaultingAdvocate General has taken us through the provisions of the Public Servants (Inquiries) Act, 1850, and that Act does suggest from the language used in the various sections with regard to the framing of the charge and the person against whom the inquiry is being held as being described as an accused, that the inquiry was more or less similar to a criminal proceeding. It is also true that we do not find any provision in that Act which makes the accused a compellable witness, and therefore the element of compulsory testimonial which we find in the Companies Act is absent and to that extent no question with regard to Art. 20(3) would arise when an inquiry is being held against a publicis clear on an examination of the provisions of the Companies Act that the scope and nature of the inquiry is not investigation into an offence. The scope and nature of the inquiry is investigation into the affairs of the company. It is equally clear that the report is not made for the purpose of a prosecution being launched by the Central Government and that the function of the Inspector is to express an opinion on the way the affairs of the company are conducted in order that appropriate action may be taken which action may take different forms like applications under the different sections of the Companies Act to which reference has been made or a prosecution under S. 242 of the Companiesthe answer to that complaint isThe first is, as we have already stated, that this is not an investigation into an offence, in which case the rights of the accused are safeguarded by the provisions of the Criminal Procedure Code, and, as the Advocate General pointed out, in our opinion under the Companies Act when we come to actual prosecution the Legislature is at pains to provide that assistance should be given by everyone concerned for the purpose of the prosecution except the accused in the proceedings. Therefore, when we reach that stage, the safeguards rightly afforded by our Criminal Procedure Code are given to the person concerned. With regard to the Evidence Act, in terms the Act applies to Judicial proceedings. It does not apply to a proceeding which is not judicial. It is an adjectival law which can be qualified and modified by the substantive law of the country. It undoubtedly happens that in aproceeding a person who is being examined cannot claim the privilege of the benefit of S. 132. But even in a judicial proceeding it would be open to the Legislature to provide that the adjectival law should be altered if it can be done undoubtedly consistent with the provisions of Art. 20(3) of the Constitution.28. Having taken all the circumstances into consideration we have come to the conclusion that Art. 20(3) has no application to the facts of this case. There is no accusation in the sense in which we have construed that expression, viz., a formal accusation, and inasmuch as there is no accusation, the compulsion introduced by the provision of the Companies Act which is impugned is not a compulsion which can be struck down by this provision of the Constitution. We may also add that in giving this restricted meaning to the Constitutional safeguard, we have carefully weighed the rights of the individual against the interest of the public and of the State. In our opinion, it is the duty of the Court, to the extent that it can legitimately do without doing violence to the language used by the Constitution makers, to arrive at a solution which, while maintaining the rights of the individual as far as possible, does not overlook the rights which the public and the State are entitled toour opinion, it is impossible to urge that there is discrimination and that there is no proper classification on a rational basis, when an important system of law as the English system recognises these exceptions as pointed out both in Insolvency law and Company Law. Therefore, if our law makes a distinction between the rights of persons who are examined under the provisions of the Company Law and the rights of persons under other laws, it cannot be said that that classification is without a rational basis.
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N.S. Rajabathar Mudaliar Vs. M.S. Vadivelu Mudaliar & Ors | the deed of trust dated 1 January, 1908 created an absolute dedication to charity subject only to a charge for the payment of maintenance to the members of the founders family or whether the dominant intention of the founder was the maintenance of the family and the grant to the charities was secondary.3. The trust deed was executed on 1 January, 1908 by S. D. Mudaliar in favor of himself, A. P. M. Mudaliar, M. T. S. Mudaliar and C. V. S. Mudaliar. S. D. Mudaliar and his predeceased son D. S. Mudaliars adopted son S. Mudaliar effected a deed of partition dated 25th November, 1907 in respect of the immovable and movable properties. By the said deed of partition S. D. Mudaliar the settlor of the deed of trust obtained the property forming the subject-matter of the said trust deed. The founder dedicated the said property by the deed of trust to the trustees. The trustees were the settlor and three other Mudaliars, viz., A. P. M. Mudaliar, M. T. S. Mudaliar and C. V. S. Mudaliar.4. Broadly stated, the trust deed contained the following provisions. First, the trustees after excluding the tax and Maramath expenses, shall during, the lifetime of the settlor pay him entire income for the purpose of discharging the debt of Rs. 3,000/- mentioned in the deed of the partition and for the maintenance of the settlor during his lifetime. Secondly, after the death of the settlor the balance of the debt that might be found due on the date after excluding the payments made by the settlor is to be paid to the creditors. Thirdly, after the settlors lifetime a sum of Rs. 10/- per mensem would be paid out of the income to the settlors daughter-in-law, namely, the appellants grandmother, viz, fathers mother "for her lifetime, for her charity expenses". Fourthly, after the lifetime of the appellants grandmother the trustees are to pay a sum of Rs. 10/- permensem permanently to the appellants adoptive father who was the adopted son of the settlors predeceased son and after the lifetime of the appellants adoptive father "to his male descendants hereditarily". Fifthly, the settlor gave full power to the trustees after meeting the expenses of the Utsavam to be celebrated in Nungambakkam Devasthanam and the trust expenses and the tax an maramath expenses such sum as they might deem proper to maintain and educate the male descendants of the settlors predeceased adopted son. The settlor further provided that if the trustees were not willing they would stop such maintenance and education expenses. Sixthly, the trustees after the lifetime of the settlor would spend from and out of the aforesaid trust income in such manner as they might deem proper and have the Vasantha Utsavam celebrated for a period of not less than three days during the Vasantha Utsavam which would be celebrated every year in the Temples of Sri Agastheeswarar and Venkatesa Perumal installed by the settlors ancestors and enshrined in Nungambakkam. Finally, after the lifetime of the settlor the trustees were directed to accumulate the amount remaining out of the income from the property after excluding the assessment, quit rent and maramath and the monthly and annual expenses and purchase properties therewith and provide the same as income for the aforesaid charity.5. In the background of these provisions, for counsel for the appellant contended that the dominant intention was a provision by way of a settlement for the members of the family and that the charities were subsidiary purposes to the said deed of trust. The provisions or direction to the trustees first to accumulate the income after meeting the expenses of assessment, quit rent and maramath and the monthly and annual expenses and secondly to purchase properties therewith were to provide income only for the aforesaid charity. The words "for the aforesaid charity are of important significance. The entire accusation was for the charity. The provisions regarding maintenance and education were subordinate to the provisions for meeting the expenses of the Utsavam. The matter does not rest there. The provisions regarding maintenance and education were to be at the sole discretion of the trustees who could stop the same if the trustees were not willing.This power of trustees to stop maintenance and education expenses is a complete negation of the appellants contention that the intention of the settlor was that education and maintenance expences were the dominant purpose of the settlement. The reason is obvious. The dominant object is never allowed by the settlor to be repelled by a discretion conferred on the trustees to stop such expenses. This power to stop is consistent with the intention of the settlor to treat the education and maintenance expenses as secondly (secondary-Ed.) objects only after the primary purpose of the trust, namely, charities are fulfilled. The tenor of the document points to the inescapable conclusion that the predominant and overwhelming intention of the settlor was to benefit the charities and provide for the same not only by making the expenses for the charities as the first and foremost direction but also by providing for accumulation of income and purchase or properties out of the said accumulated income only for the purpose of charities.6. A contention was raised by the appellant that the High Court should not have reversed the finding of the trial Court for the payment of maintenance of the appellant at Rs. 50/- per mensem. The High Court came to the conclusion that there was no legal principle to sustain this increase in maintenance.In this Court the contention which was raised in the High Court was repeated, viz., that this was a case where the cy pres doctrine would apply. The cy pres doctrine applies where a charitable trust is initially impossible or impracticable and the Court applies the property cy pres, viz, to come other charities as nearly as possible, resembling the original trust. In the present case, the maintenance and education expenses are neither charitable trusts nor similar objects of charity. | 0[ds]The provisions or direction to the trustees first to accumulate the income after meeting the expenses of assessment, quit rent and maramath and the monthly and annual expenses and secondly to purchase properties therewith were to provide income only for the aforesaid charity. The words "for the aforesaid charity are of important significance. The entire accusation was for the charity. The provisions regarding maintenance and education were subordinate to the provisions for meeting the expenses of the Utsavam. The matter does not rest there. The provisions regarding maintenance and education were to be at the sole discretion of the trustees who could stop the same if the trustees were not willing.This power of trustees to stop maintenance and education expenses is a complete negation of the appellants contention that the intention of the settlor was that education and maintenance expences were the dominant purpose of the settlement. The reason is obvious. The dominant object is never allowed by the settlor to be repelled by a discretion conferred on the trustees to stop such expenses. This power to stop is consistent with the intention of the settlor to treat the education and maintenance expenses as secondly (secondary-Ed.) objects only after the primary purpose of the trust, namely, charities are fulfilled. The tenor of the document points to the inescapable conclusion that the predominant and overwhelming intention of the settlor was to benefit the charities and provide for the same not only by making the expenses for the charities as the first and foremost direction but also by providing for accumulation of income and purchase or properties out of the said accumulated income only for the purpose ofHigh Court came to the conclusion that there was no legal principle to sustain this increase in maintenance.In this Court the contention which was raised in the High Court was repeated, viz., that this was a case where the cy pres doctrine would apply. The cy pres doctrine applies where a charitable trust is initially impossible or impracticable and the Court applies the property cy pres, viz, to come other charities as nearly as possible, resembling the original trust. In the present case, the maintenance and education expenses are neither charitable trusts nor similar objects of charity. | 0 | 1,110 | 401 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
the deed of trust dated 1 January, 1908 created an absolute dedication to charity subject only to a charge for the payment of maintenance to the members of the founders family or whether the dominant intention of the founder was the maintenance of the family and the grant to the charities was secondary.3. The trust deed was executed on 1 January, 1908 by S. D. Mudaliar in favor of himself, A. P. M. Mudaliar, M. T. S. Mudaliar and C. V. S. Mudaliar. S. D. Mudaliar and his predeceased son D. S. Mudaliars adopted son S. Mudaliar effected a deed of partition dated 25th November, 1907 in respect of the immovable and movable properties. By the said deed of partition S. D. Mudaliar the settlor of the deed of trust obtained the property forming the subject-matter of the said trust deed. The founder dedicated the said property by the deed of trust to the trustees. The trustees were the settlor and three other Mudaliars, viz., A. P. M. Mudaliar, M. T. S. Mudaliar and C. V. S. Mudaliar.4. Broadly stated, the trust deed contained the following provisions. First, the trustees after excluding the tax and Maramath expenses, shall during, the lifetime of the settlor pay him entire income for the purpose of discharging the debt of Rs. 3,000/- mentioned in the deed of the partition and for the maintenance of the settlor during his lifetime. Secondly, after the death of the settlor the balance of the debt that might be found due on the date after excluding the payments made by the settlor is to be paid to the creditors. Thirdly, after the settlors lifetime a sum of Rs. 10/- per mensem would be paid out of the income to the settlors daughter-in-law, namely, the appellants grandmother, viz, fathers mother "for her lifetime, for her charity expenses". Fourthly, after the lifetime of the appellants grandmother the trustees are to pay a sum of Rs. 10/- permensem permanently to the appellants adoptive father who was the adopted son of the settlors predeceased son and after the lifetime of the appellants adoptive father "to his male descendants hereditarily". Fifthly, the settlor gave full power to the trustees after meeting the expenses of the Utsavam to be celebrated in Nungambakkam Devasthanam and the trust expenses and the tax an maramath expenses such sum as they might deem proper to maintain and educate the male descendants of the settlors predeceased adopted son. The settlor further provided that if the trustees were not willing they would stop such maintenance and education expenses. Sixthly, the trustees after the lifetime of the settlor would spend from and out of the aforesaid trust income in such manner as they might deem proper and have the Vasantha Utsavam celebrated for a period of not less than three days during the Vasantha Utsavam which would be celebrated every year in the Temples of Sri Agastheeswarar and Venkatesa Perumal installed by the settlors ancestors and enshrined in Nungambakkam. Finally, after the lifetime of the settlor the trustees were directed to accumulate the amount remaining out of the income from the property after excluding the assessment, quit rent and maramath and the monthly and annual expenses and purchase properties therewith and provide the same as income for the aforesaid charity.5. In the background of these provisions, for counsel for the appellant contended that the dominant intention was a provision by way of a settlement for the members of the family and that the charities were subsidiary purposes to the said deed of trust. The provisions or direction to the trustees first to accumulate the income after meeting the expenses of assessment, quit rent and maramath and the monthly and annual expenses and secondly to purchase properties therewith were to provide income only for the aforesaid charity. The words "for the aforesaid charity are of important significance. The entire accusation was for the charity. The provisions regarding maintenance and education were subordinate to the provisions for meeting the expenses of the Utsavam. The matter does not rest there. The provisions regarding maintenance and education were to be at the sole discretion of the trustees who could stop the same if the trustees were not willing.This power of trustees to stop maintenance and education expenses is a complete negation of the appellants contention that the intention of the settlor was that education and maintenance expences were the dominant purpose of the settlement. The reason is obvious. The dominant object is never allowed by the settlor to be repelled by a discretion conferred on the trustees to stop such expenses. This power to stop is consistent with the intention of the settlor to treat the education and maintenance expenses as secondly (secondary-Ed.) objects only after the primary purpose of the trust, namely, charities are fulfilled. The tenor of the document points to the inescapable conclusion that the predominant and overwhelming intention of the settlor was to benefit the charities and provide for the same not only by making the expenses for the charities as the first and foremost direction but also by providing for accumulation of income and purchase or properties out of the said accumulated income only for the purpose of charities.6. A contention was raised by the appellant that the High Court should not have reversed the finding of the trial Court for the payment of maintenance of the appellant at Rs. 50/- per mensem. The High Court came to the conclusion that there was no legal principle to sustain this increase in maintenance.In this Court the contention which was raised in the High Court was repeated, viz., that this was a case where the cy pres doctrine would apply. The cy pres doctrine applies where a charitable trust is initially impossible or impracticable and the Court applies the property cy pres, viz, to come other charities as nearly as possible, resembling the original trust. In the present case, the maintenance and education expenses are neither charitable trusts nor similar objects of charity.
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The provisions or direction to the trustees first to accumulate the income after meeting the expenses of assessment, quit rent and maramath and the monthly and annual expenses and secondly to purchase properties therewith were to provide income only for the aforesaid charity. The words "for the aforesaid charity are of important significance. The entire accusation was for the charity. The provisions regarding maintenance and education were subordinate to the provisions for meeting the expenses of the Utsavam. The matter does not rest there. The provisions regarding maintenance and education were to be at the sole discretion of the trustees who could stop the same if the trustees were not willing.This power of trustees to stop maintenance and education expenses is a complete negation of the appellants contention that the intention of the settlor was that education and maintenance expences were the dominant purpose of the settlement. The reason is obvious. The dominant object is never allowed by the settlor to be repelled by a discretion conferred on the trustees to stop such expenses. This power to stop is consistent with the intention of the settlor to treat the education and maintenance expenses as secondly (secondary-Ed.) objects only after the primary purpose of the trust, namely, charities are fulfilled. The tenor of the document points to the inescapable conclusion that the predominant and overwhelming intention of the settlor was to benefit the charities and provide for the same not only by making the expenses for the charities as the first and foremost direction but also by providing for accumulation of income and purchase or properties out of the said accumulated income only for the purpose ofHigh Court came to the conclusion that there was no legal principle to sustain this increase in maintenance.In this Court the contention which was raised in the High Court was repeated, viz., that this was a case where the cy pres doctrine would apply. The cy pres doctrine applies where a charitable trust is initially impossible or impracticable and the Court applies the property cy pres, viz, to come other charities as nearly as possible, resembling the original trust. In the present case, the maintenance and education expenses are neither charitable trusts nor similar objects of charity.
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Panchdeo Singh Vs. State Of Bihar | After receipt of this order I went to Sadar Hospital, Dhanbad on the same day and recorded dying declaration of the said injured at 11.20. I recorded it, in the presence of Dr. Raman Shanker Prasad. I recorded his statement as stated by the injured and the same was read over to him. He marked his signature after being found the statement correct. That statement is scribed and signed by me. Dying declaration is marked as Ex.5." In cross-examination, the witness stated :- "xxxxxxxxxxxxxx 3. Before recording dying declaration I asked to the injured about his name etc. He was in a fit condition to make the statement or not, I did not put up any other question to know about it. He voluntarily stated his name and full address, therefore, I got satisfied myself that he was in fit condition to make the statement. The statement was read over to the injured and he marked his signature after being found it correct which is not on my record. Below the statement "Ram Singh" has been mentioned, therefore, I state that the injured marked his signature. I do not recollect as to whether he put his signature or not. There is no mention of L.T.I. before "Ram Singh". L.T.I. of Ram Singh is not on the dying declaration. 4. The injured was not previously known to me. The injured was introduced by the doctor. This fact has not been noted down by me on the dying declaration." 9. The issue thus arises for consideration as to whether a declaration, as above, by itself would tantamount to substantial evidence against the appellant herein warranting the conviction and sentence as affirmed by the High Court. 10. Before so doing, a look at the decision of this Court in Rosamma (Paparambaka Rosamma and others v. State of A.P., 1999(4) RCR (Crl.) 104 (SC) : 1999(7) SCC 695) would be of some relevance wherein this Court observed that where conviction is solely based on the dying declaration there is an obligation on the part of the Court to consider with extreme care and caution both the dying declaration as also the evidence of the witnesses supporting it. In Rosamma (supra) the doctor was also examined and the doctor appended a certificate at the end of the declaration that the patient is "conscious while recording the statement". It is on this, this Court observed that the question that needs to be considered is as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of the mind that existed before recording the dying declaration and this Court opined that in the absence of a medical certification that the injured was in a fit state of mind at the time of making that declaration, it would be very risky to accept the subjective satisfaction of the Magistrate, who opined that the injured was in a fit state of mind at the time of making a declaration. In Rosamma (supra) noting of the state of mind of the declarant before making the statement by the doctor has been stated to be an essential requirement for the prosecution to prove - incidentally - mere certification by even a doctor at the end of the declaration that the patient is conscious while recording the statement was stated to be not sufficient - this is so by reason of the factum of the dying declaration being only the circumstance for conviction and sentence of the accused. Presently, however, there is not even a doctors certification as regards the state of the condition of the declarant. It is only the Judicial Magistrate, who has stated from the witness box that the declarant was in a fit condition to make the statement and he was otherwise satisfied in regard thereto. The doctor was available since the Magistrate named him as Dr. Raman Shanker Prasad but unfortunately there is neither any certification nor even a signature of the doctor in the declaration. 11. As noticed above, declaration itself can be treated as a substantive piece of evidence and can be the basis of an Order of conviction and sentence without there being any corroboration, provided, however, the same brings forth sense of confidence and trustworthiness in the mind of the Court - why did not the doctor certify the fitness of the person making the statement or even append his signature, there is no answer to the same. The Magistrate also did not recollect as to whether the deceased did put his signature or not but since there is no mention of "L.T.I." before "Ram Singh" obviously left thumb impression is not there on the dying declaration. This is the declaration which happened to be the only material piece of evidence on the basis of which the trial Court came to a conclusion that the appellant herein ought to be found guilty under Section 302 IPC warranting sentence of life imprisonment. The decision of this court in Rosamma (supra) directly runs counter to the judgment under appeal. In our view it is not otherwise a very safe piece of evidence to rely upon for conviction under Section 302 IPC. The declaration must be such so as to evoke confidence in the factual context. However, we are unable to record our confidence on such a declaration so as to lend support and concurrence to the judgment under appeal. As noticed above, Rosamma (supra) decides counter and we do record our respectful agreement, apart from being a larger Bench judgment which should act as a binding precedent, with the observations and findings and on the wake of the aforesaid we are of the view that the High Court fell into a manifest error. The judgment under appeal thus cannot be sustained. The appeal is thus allowed. The appellant be released forthwith, if not wanted in any other case. | 1[ds]10. Before so doing, a look at the decision of this Court in Rosamma (Paparambaka Rosamma and others v. State of A.P., 1999(4) RCR (Crl.) 104 (SC) : 1999(7) SCC 695) would be of some relevance wherein this Court observed that where conviction is solely based on the dying declaration there is an obligation on the part of the Court to consider with extreme care and caution both the dying declaration as also the evidence of the witnesses supporting it. In Rosamma (supra) the doctor was also examined and the doctor appended a certificate at the end of the declaration that the patient is "conscious while recording the statement". It is on this, this Court observed that the question that needs to be considered is as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of the mind that existed before recording the dying declaration and this Court opined that in the absence of a medical certification that the injured was in a fit state of mind at the time of making that declaration, it would be very risky to accept the subjective satisfaction of the Magistrate, who opined that the injured was in a fit state of mind at the time of making a declaration. In Rosamma (supra) noting of the state of mind of the declarant before making the statement by the doctor has been stated to be an essential requirement for the prosecution to prove - incidentally - mere certification by even a doctor at the end of the declaration that the patient is conscious while recording the statement was stated to be not sufficient - this is so by reason of the factum of the dying declaration being only the circumstance for conviction and sentence of the accused. Presently, however, there is not even a doctors certification as regards the state of the condition of the declarant. It is only the Judicial Magistrate, who has stated from the witness box that the declarant was in a fit condition to make the statement and he was otherwise satisfied in regard thereto. The doctor was available since the Magistrate named him as Dr. Raman Shanker Prasad but unfortunately there is neither any certification nor even a signature of the doctor in the declaration.As noticed above, declaration itself can be treated as a substantive piece of evidence and can be the basis of an Order of conviction and sentence without there being any corroboration, provided, however, the same brings forth sense of confidence and trustworthiness in the mind of the Court - why did not the doctor certify the fitness of the person making the statement or even append his signature, there is no answer to the same. The Magistrate also did not recollect as to whether the deceased did put his signature or not but since there is no mention of "L.T.I." before "Ram Singh" obviously left thumb impression is not there on the dying declaration. This is the declaration which happened to be the only material piece of evidence on the basis of which the trial Court came to a conclusion that the appellant herein ought to be found guilty under Section 302 IPC warranting sentence of life imprisonment. The decision of this court in Rosamma (supra) directly runs counter to the judgment under appeal. In our view it is not otherwise a very safe piece of evidence to rely upon for conviction under Section 302 IPC. The declaration must be such so as to evoke confidence in the factual context. However, we are unable to record our confidence on such a declaration so as to lend support and concurrence to the judgment under appeal. As noticed above, Rosamma (supra) decides counter and we do record our respectful agreement, apart from being a larger Bench judgment which should act as a binding precedent, with the observations and findings and on the wake of the aforesaid we are of the view that the High Court fell into a manifest error. The judgment under appeal thus cannot be sustained. The appeal is thus allowed. The appellant be released forthwith, if not wanted in any other case. | 1 | 2,772 | 784 | ### Instruction:
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After receipt of this order I went to Sadar Hospital, Dhanbad on the same day and recorded dying declaration of the said injured at 11.20. I recorded it, in the presence of Dr. Raman Shanker Prasad. I recorded his statement as stated by the injured and the same was read over to him. He marked his signature after being found the statement correct. That statement is scribed and signed by me. Dying declaration is marked as Ex.5." In cross-examination, the witness stated :- "xxxxxxxxxxxxxx 3. Before recording dying declaration I asked to the injured about his name etc. He was in a fit condition to make the statement or not, I did not put up any other question to know about it. He voluntarily stated his name and full address, therefore, I got satisfied myself that he was in fit condition to make the statement. The statement was read over to the injured and he marked his signature after being found it correct which is not on my record. Below the statement "Ram Singh" has been mentioned, therefore, I state that the injured marked his signature. I do not recollect as to whether he put his signature or not. There is no mention of L.T.I. before "Ram Singh". L.T.I. of Ram Singh is not on the dying declaration. 4. The injured was not previously known to me. The injured was introduced by the doctor. This fact has not been noted down by me on the dying declaration." 9. The issue thus arises for consideration as to whether a declaration, as above, by itself would tantamount to substantial evidence against the appellant herein warranting the conviction and sentence as affirmed by the High Court. 10. Before so doing, a look at the decision of this Court in Rosamma (Paparambaka Rosamma and others v. State of A.P., 1999(4) RCR (Crl.) 104 (SC) : 1999(7) SCC 695) would be of some relevance wherein this Court observed that where conviction is solely based on the dying declaration there is an obligation on the part of the Court to consider with extreme care and caution both the dying declaration as also the evidence of the witnesses supporting it. In Rosamma (supra) the doctor was also examined and the doctor appended a certificate at the end of the declaration that the patient is "conscious while recording the statement". It is on this, this Court observed that the question that needs to be considered is as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of the mind that existed before recording the dying declaration and this Court opined that in the absence of a medical certification that the injured was in a fit state of mind at the time of making that declaration, it would be very risky to accept the subjective satisfaction of the Magistrate, who opined that the injured was in a fit state of mind at the time of making a declaration. In Rosamma (supra) noting of the state of mind of the declarant before making the statement by the doctor has been stated to be an essential requirement for the prosecution to prove - incidentally - mere certification by even a doctor at the end of the declaration that the patient is conscious while recording the statement was stated to be not sufficient - this is so by reason of the factum of the dying declaration being only the circumstance for conviction and sentence of the accused. Presently, however, there is not even a doctors certification as regards the state of the condition of the declarant. It is only the Judicial Magistrate, who has stated from the witness box that the declarant was in a fit condition to make the statement and he was otherwise satisfied in regard thereto. The doctor was available since the Magistrate named him as Dr. Raman Shanker Prasad but unfortunately there is neither any certification nor even a signature of the doctor in the declaration. 11. As noticed above, declaration itself can be treated as a substantive piece of evidence and can be the basis of an Order of conviction and sentence without there being any corroboration, provided, however, the same brings forth sense of confidence and trustworthiness in the mind of the Court - why did not the doctor certify the fitness of the person making the statement or even append his signature, there is no answer to the same. The Magistrate also did not recollect as to whether the deceased did put his signature or not but since there is no mention of "L.T.I." before "Ram Singh" obviously left thumb impression is not there on the dying declaration. This is the declaration which happened to be the only material piece of evidence on the basis of which the trial Court came to a conclusion that the appellant herein ought to be found guilty under Section 302 IPC warranting sentence of life imprisonment. The decision of this court in Rosamma (supra) directly runs counter to the judgment under appeal. In our view it is not otherwise a very safe piece of evidence to rely upon for conviction under Section 302 IPC. The declaration must be such so as to evoke confidence in the factual context. However, we are unable to record our confidence on such a declaration so as to lend support and concurrence to the judgment under appeal. As noticed above, Rosamma (supra) decides counter and we do record our respectful agreement, apart from being a larger Bench judgment which should act as a binding precedent, with the observations and findings and on the wake of the aforesaid we are of the view that the High Court fell into a manifest error. The judgment under appeal thus cannot be sustained. The appeal is thus allowed. The appellant be released forthwith, if not wanted in any other case.
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10. Before so doing, a look at the decision of this Court in Rosamma (Paparambaka Rosamma and others v. State of A.P., 1999(4) RCR (Crl.) 104 (SC) : 1999(7) SCC 695) would be of some relevance wherein this Court observed that where conviction is solely based on the dying declaration there is an obligation on the part of the Court to consider with extreme care and caution both the dying declaration as also the evidence of the witnesses supporting it. In Rosamma (supra) the doctor was also examined and the doctor appended a certificate at the end of the declaration that the patient is "conscious while recording the statement". It is on this, this Court observed that the question that needs to be considered is as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of the mind that existed before recording the dying declaration and this Court opined that in the absence of a medical certification that the injured was in a fit state of mind at the time of making that declaration, it would be very risky to accept the subjective satisfaction of the Magistrate, who opined that the injured was in a fit state of mind at the time of making a declaration. In Rosamma (supra) noting of the state of mind of the declarant before making the statement by the doctor has been stated to be an essential requirement for the prosecution to prove - incidentally - mere certification by even a doctor at the end of the declaration that the patient is conscious while recording the statement was stated to be not sufficient - this is so by reason of the factum of the dying declaration being only the circumstance for conviction and sentence of the accused. Presently, however, there is not even a doctors certification as regards the state of the condition of the declarant. It is only the Judicial Magistrate, who has stated from the witness box that the declarant was in a fit condition to make the statement and he was otherwise satisfied in regard thereto. The doctor was available since the Magistrate named him as Dr. Raman Shanker Prasad but unfortunately there is neither any certification nor even a signature of the doctor in the declaration.As noticed above, declaration itself can be treated as a substantive piece of evidence and can be the basis of an Order of conviction and sentence without there being any corroboration, provided, however, the same brings forth sense of confidence and trustworthiness in the mind of the Court - why did not the doctor certify the fitness of the person making the statement or even append his signature, there is no answer to the same. The Magistrate also did not recollect as to whether the deceased did put his signature or not but since there is no mention of "L.T.I." before "Ram Singh" obviously left thumb impression is not there on the dying declaration. This is the declaration which happened to be the only material piece of evidence on the basis of which the trial Court came to a conclusion that the appellant herein ought to be found guilty under Section 302 IPC warranting sentence of life imprisonment. The decision of this court in Rosamma (supra) directly runs counter to the judgment under appeal. In our view it is not otherwise a very safe piece of evidence to rely upon for conviction under Section 302 IPC. The declaration must be such so as to evoke confidence in the factual context. However, we are unable to record our confidence on such a declaration so as to lend support and concurrence to the judgment under appeal. As noticed above, Rosamma (supra) decides counter and we do record our respectful agreement, apart from being a larger Bench judgment which should act as a binding precedent, with the observations and findings and on the wake of the aforesaid we are of the view that the High Court fell into a manifest error. The judgment under appeal thus cannot be sustained. The appeal is thus allowed. The appellant be released forthwith, if not wanted in any other case.
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Maharashtra General Kamgar Union, Bombay Vs. Solid Containers Limited and Others | and representative union it cannot deprive other Trade Unions from representing the employees who are its members under Act No. 1 of 1972. In this context reliance was heavily placed upon sub-section (2) of section 21 of the Act No. 1 of 1972 and section 27A of the B. I. R. Act. It was urged that the provisions read together the recognised union like respondent No. 2 have a right to represent the employees only to the extent specified therein. In particular it was submitted that the right of a recognised union to represent employees under the B. I. R. Act was unlimited but it is not so under the Act No. 1 of 1972. We will shortly point out that the submissions are devoid of any merits and must be rejected. 13. It is not in dispute that the respondent No. 2 is a recognised and an approved union under the provisions of Chapter IV of the B. I. R. Act and they have been conferred a right to be the representative of employees to appear or act on their behalf, first in the order of preference under section 30 of the B. I. R. Act except for one exception and that is as provided in section 33-A. It deals with the appearance of person in proceedings in which the dispute is between the employees and employees. Therefore, no doubt is left that a recognised and an approved union has every right to appear and act in every proceedings irrespective of the fact whether those employees are members of the Union or not with certain exceptions as carved out also under section 27-A of the B. I. R. Act. That section specifically provides that no employee shall be allowed to appear and act in any proceedings under the B. I. R. Act except through the representative of employees and the representative of employees is provided for in section 30 of the Act. A representative Union is first in the order of preference. No doubt, section 27-A also provides for some exceptions because the section begins by the words Save as provided in sections 32, 33 and 33A with which we are not presently concerned. An unequivocal right is hence established that the representative union has the sole privilege of representing employees in an industry and that right is not taken away or in any manner affected in proceedings under Act No. 1 of 1972. For all purposes a recognised union continues to be a representative union and shall remain as such till the recognition is lost or revoked. 14. Sub-section (2) of section 21 on which reliance is heavily placed on behalf of the appellant is quoted below : 21(1)... ... ... 21(2) Notwithstanding anything contained in the Bombay Act, no employee in any industry to which the provisions of the Bombay Act for the time being apply, shall be allowed to appear or act or allowed to be represented in any proceeding relating to unfair labour practices specified in items 2 and 6 of Schedule IV of this Act except though the representative of employees entitled to appear under section 30 of the Bombay Act. A representative union has been given a special right to appear and act on behalf of an employee in proceedings in relation to unfair labour practices specified in items 2 and 6 of Schedule IV of the Act No. 1 of 1972, the reason being that some other employee or employees not appearing in the proceeding can upon adjudication of the complaint be adversely affected. - Item 2 deals with the abolition of work of regular nature being done by the employees and to give such work to contractors as a measure of breaking strike. Similarly Items 6 relates to employment of badlis, casual or temporaries and to continue to employ as such for years together with the object of depriving such employees the status and privileges of permanent employees. It is not necessary to elaborate on these items as either of them are self explanatory. The section authorises only the representative union to appear and act in such proceedings. But simply because such power has been specifically conferred no inference can be drawn that in proceedings other than those relating to unfair labour practices specified in Items 2 and 6 of Schedule IV, the representative union cannot represent the employees. Such an interpretation as sought to be put forth cannot be accepted. The right of the employees working in the industry to which the provisions of B. I. R. Act apply to be represented by the representative Union remains unfettered and it does not change for the reason that the proceedings are under Act No. 1 of 1972. The status and privilege of the representative union remain unchanged. The supremacy of the representative and approved union is well recognised in Balmer Lawrie Workers Union, Bombay and Anr. v. Balmer Lawrie and Co. Ltd and Ors. 1985 I CLR 103. The respondent No. 1 Company was hence justified in filing the Complaint (ULP) No. 22 of 1991 against the representative union. It is also made clear that nothing prevented the said Company to file such a complaint even against other Trade Unions provided they are satisfied that those unions were responsible for engaging in or have engaged in such unfair labour practices complained of by them. 15. We may also add that sub-section (2) of section 21 of the Act No. 1 of 1972 curtails not only the right of an employee to appear and act or allowed to be represented in proceeding of unfair labour practices stipulated therein but also prohibits the right of Trade Unions other than the representative Union. It is difficult for us to draw the conclusion that the proceedings other than that stipulated in sub-section (2) of section 21, the representative Union has no legal right to appear and act on behalf of the employees and that right could be exercised by other trade unions in the field. | 0[ds]and strikes are concerned,can be described as the antithesis of a strike. Just as a strike is a weapon available to the employees for enforcing their industrial demands, ais a weapon available to the employer to persuade by a coercive process the employees to see his point of view and to accept his demands. The main object of notice of 14 days beforeor strike is to avoid possible dislocation to the employers and their workmen and give some breathing time to adjust. It is not that the law does not permit the employers to resort toin the same manner as the workmen are entitled to use the weapon of strike for achieving their objects. The contemplated notice under section 24 firstly operates as a warning to the employees that the employer cannot make any further concession and gives an opportunity to them to reconsider their strategy by weighing the reasonableness of their claim as also their overall strength and capacity to endure suffering involved. Secondly, such notice enables them to make necessary adjustments to face impending unemployment in the event of their determination to fight. Thirdly, it also gives an opportunity to those interested in industrial peace, including the Government machinery in this behalf, to make moves for ironing out some settlementUnder Rule 23 of the M. R. T. U. and P. U. L. P. Rules, 1975 the notice ofis required to be given inJ and is required to be sent by registered post. The notice is required to be accompanied by an annexure containing a statement of reasons. Thus, all that a Court is required to determine is as to whether the management has given the requisite notice in the prescribed form accompanied by an annexure containing the reasons for clamping aThe further inquiry which is required to be made, is whether thehas or has not been commenced within the 14 days notice period. These are the parameters of the inquiry. Once it is found that the requisite notice in the prescribed form has been given and that notice is accompanied by an annexure containing the reasons for thehas not been commenced prior the notice period of 14 days, the inquiry is complete. On the aforesaid findings being given the only conclusion that follows is that theis not illegal and hence no offence can be said to have been committed under Item 6 of Schedule II of the Act. The Court, in proceeding under the Act, is, therefore, not required or in other words it is not open to the Court to go into the truth or otherwise or the justification or otherwise of the reasons which have led the management to clamp aThe enquiry is beyond the scope and ambit of the relevant provisions of the Act. If a Court were to find that theis illegal, it will make a declaration not that effect. It is only after the management fails to lift the illegalwithin a period of 48 hours that undern (5) of section 25 thewill be deemed to be an illegalonly in such a case that the provisions of Item 6 of Schedule II will come into operation. The said item provides that proposing or continuing adeemed to be illegal under this Act is made an unfair labour practice on the part of employers. The aforesaid provision, therefore, does not contemplate an inquiry into the justification or otherwise of the reasons which have led to the clamping of aThat does not form part of the inquiry under the M. R. T. U. and P. U. L. P. Act, 197119. Since it has been a consistent endeavour on the part of Shri Deshmukh to contend that the Tribunal ought to have gone into the justification or otherwise of theand that it was not justified in not doing so, we were taken through the relevant material and evidence on record relation to the justification or otherwise of theWe have noticed that after the application of the respondent for closure under Section 25(O) of the Industrial Disputes Act was dismissed, several notices were issued by the respondent alleging serious misconduct on the part of the workers. We have reproduced the gist of some of the notices in the preceding paragraphs. After the notices, the first respondent, on the 7th January, 1986, has issued its notice ofhas given reasons for issuing the notice ofDespite the earlier notices alleging violence on the part of the workers and the notice ofdated 7th of January, 1986, no reply had been sent by the Appellant for a considerable period. It is only on the 6th of May, 1986, which is after a long gap of four months, that a reply denying the allegations is sent. The present complaint is also belatedly filed on the 18th of June, 1986 which is beyond the period of limitation of 90 days. Notices of 26th of December, 1985 and thereafter are not notices of insignificant nature. They contain serious allegations of misconduct and violence. The notices have gone unreplied. Inaction on the part of Appellants can be a factor that can be taken into account for holding that the allegations have been acceded for want of denials. Similar is the case of notice ofdated 7th of January 1986. Though the notice contains serious allegations there is no immediate reply. In fact, the reply which is sent after a lapse of four months, can be said to be an afterhought. Similar is the case in respect of the complaint, which is filed after over five months from the date of the notice ofBy way of explaining the delay, it is stated that thenotices were not individually served on the workers and hence the employees did not know the reasons of thenotice, which is served upon the, the same, it is alleged, was misplaced as it got mingled with some other files. On search it was found on 6th of May, 1986 and, thereafter, the same was replied. The rest of the time was taken for giving instructions to file the complaint. In our view, though the explanation offered for condonation of delay has found favour with the Tribunal, it is difficult to resist the conclusion that if the allegations contained in the notices were got up and were totally false and baseless, as is sought to be contended before us, the same would not have been treated so callously and casually. In the circumstances, we are inclined to hold that there is a grain of truth in the allegations contained in the notices21. In our view, though it is not necessary or for that matter it is not open to a Court to go into the justification of the reasons for effecting a, even if one were to go into the issue, as Shri Deshmukh wants us to do, there is sufficient material on record to come to a conclusion that there existed sufficient and cogent reasons for effecting aIn the circumstances, we hold that thedeclared by the first respondent company is not illegal. If the same is not illegal the question of its being deemed illegal does not arise. With this finding it would ordinarily have been enough for the disposal of the Letters Patent Appeal. The finding of the Tribunal that no offence is made out under Schedule II, Item 6 and Schedule IV. Items 9 and 10 deserves to be upheld. Similarly, the dismissal of the complaint also deserves to be confirmed. We, however, are dealing with the other two issues as the learned counsel appearing for the contending parties have addressed us on those issues at considerable lengthThe second question, as to whether the firsty was justified in insisting upon its workers to execute an undertaking of god behaviour and diligent work by way of condition precedent for lifting thestrictly speaking, is not an issue which arises in the present complaint bearing Complaint (ULP) No. 189 of 1986. The said issue squarely arose in the second complaint bearing Complaint (ULP) No. 220 of 1987. That, however, came to be dismissed on 18th of January, 1988. The dismissal, no doubt, was not on merits but was on the maintainability of the complaint. May be, the order was not justified, however, appellant has not taken an exception to the dismissal of the complaint and that dismissal has become final. As far as the present complaint (ULP) No. 189 of 1986 is concerned, the same concerns only with the issue regarding the illegality or otherwise of the22. We have already found that the allegations which are contained in the notice ofand the notices that have preceded the same, are wellt on the material on record. If this be the case, in our judgment, the insistence on the part of the management on giving of an undertaking, as has been done in the present case, cannot be said to be unjustified and, therefore, cannot be faulted24. If the ratio of the above case is applied to the facts of the present case, the inference is irresistible that the insistence on the part of the respondent on the workers to sign an undertaking before they are permitted to resume duties, cannot be said to be unjustified. As far as the majority of workers are concerned, they have settled with the respondent and have resumed duty after signing the requisite undertaking. The question that really arises is, whether the denial on the part of 27 workers in executing the undertaking even in the form, which is reproduced above can be said to be justified. If the insistence on the part of the respondent is to be held to be justified, the refusal to give the undertaking by the minority of the workers, who owe allegiance to the, has to be termed as unreasonable26. We have given our anxious consideration to the above decision and we find that the same was a decision based on facts of that particular case. In paragraph 16, it has been emphasised that there is nothing on record and nothing was brought on record by the respondent in this regard to show that act of violence and acts of indiscipline made the respondent company to insist upon the undertaking of the type involved in this case. This however, is not the case in the case at hand. We have, on facts found that the workers have been guilty of acts of violence and indiscipline causing harm to the officers of the first respondent company and causing damage to the property. Hence, on facts of the present case, we have no hesitation in holding that the insistence on the part of the first respondent company, in taking an undertaking is fully justified29. In view of the aforesaid decisions we answer the second question in the affirmative and hold that the first respondent company was justified in insisting upon its workers to execute an undertaking of good behaviour and diligent work by way of condition precedent for lifting the | 0 | 14,286 | 1,988 | ### Instruction:
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and representative union it cannot deprive other Trade Unions from representing the employees who are its members under Act No. 1 of 1972. In this context reliance was heavily placed upon sub-section (2) of section 21 of the Act No. 1 of 1972 and section 27A of the B. I. R. Act. It was urged that the provisions read together the recognised union like respondent No. 2 have a right to represent the employees only to the extent specified therein. In particular it was submitted that the right of a recognised union to represent employees under the B. I. R. Act was unlimited but it is not so under the Act No. 1 of 1972. We will shortly point out that the submissions are devoid of any merits and must be rejected. 13. It is not in dispute that the respondent No. 2 is a recognised and an approved union under the provisions of Chapter IV of the B. I. R. Act and they have been conferred a right to be the representative of employees to appear or act on their behalf, first in the order of preference under section 30 of the B. I. R. Act except for one exception and that is as provided in section 33-A. It deals with the appearance of person in proceedings in which the dispute is between the employees and employees. Therefore, no doubt is left that a recognised and an approved union has every right to appear and act in every proceedings irrespective of the fact whether those employees are members of the Union or not with certain exceptions as carved out also under section 27-A of the B. I. R. Act. That section specifically provides that no employee shall be allowed to appear and act in any proceedings under the B. I. R. Act except through the representative of employees and the representative of employees is provided for in section 30 of the Act. A representative Union is first in the order of preference. No doubt, section 27-A also provides for some exceptions because the section begins by the words Save as provided in sections 32, 33 and 33A with which we are not presently concerned. An unequivocal right is hence established that the representative union has the sole privilege of representing employees in an industry and that right is not taken away or in any manner affected in proceedings under Act No. 1 of 1972. For all purposes a recognised union continues to be a representative union and shall remain as such till the recognition is lost or revoked. 14. Sub-section (2) of section 21 on which reliance is heavily placed on behalf of the appellant is quoted below : 21(1)... ... ... 21(2) Notwithstanding anything contained in the Bombay Act, no employee in any industry to which the provisions of the Bombay Act for the time being apply, shall be allowed to appear or act or allowed to be represented in any proceeding relating to unfair labour practices specified in items 2 and 6 of Schedule IV of this Act except though the representative of employees entitled to appear under section 30 of the Bombay Act. A representative union has been given a special right to appear and act on behalf of an employee in proceedings in relation to unfair labour practices specified in items 2 and 6 of Schedule IV of the Act No. 1 of 1972, the reason being that some other employee or employees not appearing in the proceeding can upon adjudication of the complaint be adversely affected. - Item 2 deals with the abolition of work of regular nature being done by the employees and to give such work to contractors as a measure of breaking strike. Similarly Items 6 relates to employment of badlis, casual or temporaries and to continue to employ as such for years together with the object of depriving such employees the status and privileges of permanent employees. It is not necessary to elaborate on these items as either of them are self explanatory. The section authorises only the representative union to appear and act in such proceedings. But simply because such power has been specifically conferred no inference can be drawn that in proceedings other than those relating to unfair labour practices specified in Items 2 and 6 of Schedule IV, the representative union cannot represent the employees. Such an interpretation as sought to be put forth cannot be accepted. The right of the employees working in the industry to which the provisions of B. I. R. Act apply to be represented by the representative Union remains unfettered and it does not change for the reason that the proceedings are under Act No. 1 of 1972. The status and privilege of the representative union remain unchanged. The supremacy of the representative and approved union is well recognised in Balmer Lawrie Workers Union, Bombay and Anr. v. Balmer Lawrie and Co. Ltd and Ors. 1985 I CLR 103. The respondent No. 1 Company was hence justified in filing the Complaint (ULP) No. 22 of 1991 against the representative union. It is also made clear that nothing prevented the said Company to file such a complaint even against other Trade Unions provided they are satisfied that those unions were responsible for engaging in or have engaged in such unfair labour practices complained of by them. 15. We may also add that sub-section (2) of section 21 of the Act No. 1 of 1972 curtails not only the right of an employee to appear and act or allowed to be represented in proceeding of unfair labour practices stipulated therein but also prohibits the right of Trade Unions other than the representative Union. It is difficult for us to draw the conclusion that the proceedings other than that stipulated in sub-section (2) of section 21, the representative Union has no legal right to appear and act on behalf of the employees and that right could be exercised by other trade unions in the field.
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serious allegations of misconduct and violence. The notices have gone unreplied. Inaction on the part of Appellants can be a factor that can be taken into account for holding that the allegations have been acceded for want of denials. Similar is the case of notice ofdated 7th of January 1986. Though the notice contains serious allegations there is no immediate reply. In fact, the reply which is sent after a lapse of four months, can be said to be an afterhought. Similar is the case in respect of the complaint, which is filed after over five months from the date of the notice ofBy way of explaining the delay, it is stated that thenotices were not individually served on the workers and hence the employees did not know the reasons of thenotice, which is served upon the, the same, it is alleged, was misplaced as it got mingled with some other files. On search it was found on 6th of May, 1986 and, thereafter, the same was replied. The rest of the time was taken for giving instructions to file the complaint. In our view, though the explanation offered for condonation of delay has found favour with the Tribunal, it is difficult to resist the conclusion that if the allegations contained in the notices were got up and were totally false and baseless, as is sought to be contended before us, the same would not have been treated so callously and casually. In the circumstances, we are inclined to hold that there is a grain of truth in the allegations contained in the notices21. In our view, though it is not necessary or for that matter it is not open to a Court to go into the justification of the reasons for effecting a, even if one were to go into the issue, as Shri Deshmukh wants us to do, there is sufficient material on record to come to a conclusion that there existed sufficient and cogent reasons for effecting aIn the circumstances, we hold that thedeclared by the first respondent company is not illegal. If the same is not illegal the question of its being deemed illegal does not arise. With this finding it would ordinarily have been enough for the disposal of the Letters Patent Appeal. The finding of the Tribunal that no offence is made out under Schedule II, Item 6 and Schedule IV. Items 9 and 10 deserves to be upheld. Similarly, the dismissal of the complaint also deserves to be confirmed. We, however, are dealing with the other two issues as the learned counsel appearing for the contending parties have addressed us on those issues at considerable lengthThe second question, as to whether the firsty was justified in insisting upon its workers to execute an undertaking of god behaviour and diligent work by way of condition precedent for lifting thestrictly speaking, is not an issue which arises in the present complaint bearing Complaint (ULP) No. 189 of 1986. The said issue squarely arose in the second complaint bearing Complaint (ULP) No. 220 of 1987. That, however, came to be dismissed on 18th of January, 1988. The dismissal, no doubt, was not on merits but was on the maintainability of the complaint. May be, the order was not justified, however, appellant has not taken an exception to the dismissal of the complaint and that dismissal has become final. As far as the present complaint (ULP) No. 189 of 1986 is concerned, the same concerns only with the issue regarding the illegality or otherwise of the22. We have already found that the allegations which are contained in the notice ofand the notices that have preceded the same, are wellt on the material on record. If this be the case, in our judgment, the insistence on the part of the management on giving of an undertaking, as has been done in the present case, cannot be said to be unjustified and, therefore, cannot be faulted24. If the ratio of the above case is applied to the facts of the present case, the inference is irresistible that the insistence on the part of the respondent on the workers to sign an undertaking before they are permitted to resume duties, cannot be said to be unjustified. As far as the majority of workers are concerned, they have settled with the respondent and have resumed duty after signing the requisite undertaking. The question that really arises is, whether the denial on the part of 27 workers in executing the undertaking even in the form, which is reproduced above can be said to be justified. If the insistence on the part of the respondent is to be held to be justified, the refusal to give the undertaking by the minority of the workers, who owe allegiance to the, has to be termed as unreasonable26. We have given our anxious consideration to the above decision and we find that the same was a decision based on facts of that particular case. In paragraph 16, it has been emphasised that there is nothing on record and nothing was brought on record by the respondent in this regard to show that act of violence and acts of indiscipline made the respondent company to insist upon the undertaking of the type involved in this case. This however, is not the case in the case at hand. We have, on facts found that the workers have been guilty of acts of violence and indiscipline causing harm to the officers of the first respondent company and causing damage to the property. Hence, on facts of the present case, we have no hesitation in holding that the insistence on the part of the first respondent company, in taking an undertaking is fully justified29. In view of the aforesaid decisions we answer the second question in the affirmative and hold that the first respondent company was justified in insisting upon its workers to execute an undertaking of good behaviour and diligent work by way of condition precedent for lifting the
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State Of Punjab Vs. Okara Grain Buyers Syndicate Ltd.And Ors.(And Connected Appeals) | decision held, following these earlier rulings on the construction of the Civil Procedure Code, particularly S. 20 and other like enactments, that the provisions of S. 4 which enabled suits to be filed in India notwithstanding that the cause of action arose in Pakistan could not be availed of by displaced persons to file suits against the Government - of the State or of the Union.33. The net result of this construction was that in cases where no part of the action arose within India, no suit could be instituted against the State or the Union Government notwithstanding that by the combined operation of the Independence (Liabilities) Order, 1947, read with either S. 176 of the Government of India Act, or Art. 300 of the Constitution, as the case may be, a liability was cast on the Government of the State and the Union to make good a claim. This result might be unfortunate but if it was designed, there was no escape from that conclusion.34. The argument of the learned Advocate-General was that when this enactment of 1948 lapsed by efflux of time in 1951, its place was taken by the Act and that as the same word "person" with the qualifying expressions indicating his or its residence or place of business were repeated in the Act without any specific provision for claims against the State, Parliament must be taken to have affirmed this decision, adopting its reasoning and that consequently, in any event, the general rule of interpretation about the State not being bound by an enactment in which it is not named expressly or by necessary implication was doubly attracted and reinforced.35.We are clearly of the view that this argument does not deserve to be accepted. In the first place, we are concerned solely with the interpretation of the Act of 1951 and unless there was an ambiguity it would be impermissible to refer to any previous legislation for construing the words in it. The examination we have made of the Act read in conjunction with the purposes it seeks to achieve which are manifest in its various provisions have led us unmistakably to the conclusion which we have expressed earlier. In the circumstances, there is no scope for invoking this external aid to the construction of the expression used in the Act. Secondly, the scope of the two enactment viz., the Act of 1948 and that of 1951 are widely different, and the latter has a definitely more extended scope and is designed to secure substantive advantages to displaced persons which were wholly foreign to the earlier law which was but of very limited scope. Therefore even if the language used in the two enactments were identical - which is not even the case here - the same conclusion would not necessarily follow having regard to the differing scopes of the two pieces of legislation. It could not therefore be said that the two Acts are in pari materia so as to attract the rule relied on. Lastly, the rule of construction which is certainly not one of a compelling nature, is generally adopted in the construction of consolidating enactments where provisions which have appeared in earlier repealed statutes which have received an uniform and accepted judicial interpretation are re-enacted. Obviously that is not the case here. In the circumstances, we consider it unnecessary to examine whether this solitary decision on the construction of S. 4 of the Act of 1948, was correct. We have, therefore, no hesitation in rejecting the second point urged.36. The last submission was that the learned Judges were not right in considering that unless the construction of S. 13 which they accepted was correct, almost the entire body of displaced creditors would be without a remedy in respect of their claims against the Government of the State and the Union. Though the learned Advocate-General started by saying that in every case in which there could be a cause of action against the State Government under Para 8 of the Indian Independence (Liabilities) Order, 1947, a suit would lie after partition, even on the basis of S. 20 of the Civil Procedure Code, he had to concede that in a number of cases the party would be without a remedy. Apart from this admission, we consider that in a large number of cases the cause of action would have arisen in Lahore where the contract with the Government of the Province of Punjab was concluded and it is possible that no part of the cause of action might arise in India so as to permit a suit against the Government of the Punjab or of the Union if the provisions of the Civil Procedure Code determined the forum therefor. In our judgment nothing turns on the exact proportion of the cases, where the party would be without a remedy. If the terms of the enactment were ambiguous and had to be interpreted in the light of the circumstance whether the one construction or the other would leave parties without a remedy then in that event something might depend on whether it was only a marginal case that was beyond the provisions of the Act or the bulk of the cases. That, however, is not the position here. We have arrived at the construction of the provisions of the Act, without reference to the hardship which the opposite view might cause to particular displaced creditors. It is for this reason that we say that the question of the relative number of creditors who would suffer hardship is not strictly material for the decision. We have, therefore, thought it unnecessary to examine the precise circumstances in which displaced creditors might or might not be in a position to institute suits against the State Government to enforce claims which fell within Para 8 of the Independence (Liabilities) Order, 1947.37. In these circumstances, we consider, though for different reasons that the conclusion of the High Court was right and that the revision petitions were properly rejected.38. | 0[ds]In the view we take of the construction of the provisions of the Act before us, in the light of the principles of construction formulated by Lord Du Parcq, we do not consider it necessary to examine whether there are any further limitations, qualifications or exceptions to the rule as applied to Indian statutes as have been accepted in the United Kingdom which have been set out and expounded at pages 438-443 of the sixth edition of Crais onsee force in the submission of the learned Advocate-General and if the matter had to be decided solely on the basis of the expressions used to define the word "debt and the description of the "person against whom proceedings could be taken under S. 13 of the Act, there would undoubtedly be grave difficulties in the way of accepting the view that "person" was intended to include the Government of the Union or of the State.From the above it follows that the respondent does not gain any advantage for the decision of the matter now under debate by being able to establish that the State or the Government of a State is an entity, nor the appellant by demonstrating that the State is not a juristic person of the same type as a corporation. We do not therefore propose to deal any further with thiswould, however, make two observations : (1) that the mere fact that certain artificial entities like corporations are brought within the scope of the Act, would not by itself rebut the presumptive rule of construction that the State is not bound by a statute unless it is brought within its scope expressly or by necessary implication, (2)it would not be correct to say that the State is not a constitutional or even juristic entity for the reason that it does not partake the characteristics of or satisfy in whole the definition of a corporation. The State is an organised political institution which has several of the attributes of a corporation. Under Art. 300 of the Constitution, the Government of the Union and the Government of a State are enabled to sue and be sued in the name of Union of India and of the Government of the State, as the case may be. It would not, therefore be improper to speak of the Union and the State as constitutional entities which have attributes defined by theis manifest that the property referred to in the schedule prescribed under S. 5(2)(iii), the expression "attachable assets" in the Explanation to S. 32, and the words "property moveable or immovable" in S. 47 must all bear the same connotation. If a debt due to a displaced debtor is not within S. 5 it could not be within the other provisions just now referred to. If that were the proper construction, the result would be that the displaced debtor could obtain the entire benefit provided for by S. 32(2) and (3) etc. and later if he realised any dues from the State keep the same to himself free of the claims of all his creditors. It is obvious that such a result could not have been intended and, therefore, it must be held that such a debt as an asset must be included in the schedule of properties referred to in S. 5 and that so far as S. 32 is concerned the debts owing by the State to displaced debtor ought to be ascertained for determining the paying capacity of the debtor and relief afforded to the displaced debtor on the basis that such debts due to him are realisable assets within the scope of the Act. It would follow that the debt by the Government or by the State is within the Act by necessary implication, because the same is necessary for working out the relief to which a displaced debtor who files an application under S. 5 or S. 11 (2) is entitled. We have already made reference to S. 11. Its first sub-section deals with an application by a displaced creditor who seeks to enforce his claim against a displaced debtor. The second sub-section permits the displaced debtor to make an application under S. 5 and the two - the claim and what might be called a cross claim - have to be considered together, and the relief open to the displaced person who might be a debtor or a creditor have to be worked out conjointly.Confining oneself to what is strictly material "Debt" is defined as a pecuniary liability due to a "displaced person" from "any other person" ordinarily residing in the territory to which the Act extends. It was because of the circumstance that such a condition of residence would not be apt in the case of a State or Government as regards which no residence could be attributed, that it was said that the debt due by a State was not within the definition. That is, no doubt, a weighty argument and if it stood alone its effect could be over-whelming, but as against it must be noticed that it is really a part of the definition which has to be applied in the absence of anything to the contrary in the context and if on a consideration of S. 13 and the other relevant provisions to which we have referred it was the intention of the enactment not to exclude the State from its operation, the definition clause could not per se negative such a construction. The definition would, in the context of the other provisions, be read as applying the test of "residence" or "of carrying on business" exclusively to natural or artificial persons to whom such conditions would beare clearly of the view that this argument does not deserve to be accepted. In the first place, we are concerned solely with the interpretation of the Act of 1951 and unless there was an ambiguity it would be impermissible to refer to any previous legislation for construing the words in it. The examination we have made of the Act read in conjunction with the purposes it seeks to achieve which are manifest in its various provisions have led us unmistakably to the conclusion which we have expressed earlier. In the circumstances, there is no scope for invoking this external aid to the construction of the expression used in the Act. Secondly, the scope of the two enactment viz., the Act of 1948 and that of 1951 are widely different, and the latter has a definitely more extended scope and is designed to secure substantive advantages to displaced persons which were wholly foreign to the earlier law which was but of very limited scope. Therefore even if the language used in the two enactments were identical - which is not even the case here - the same conclusion would not necessarily follow having regard to the differing scopes of the two pieces of legislation. It could not therefore be said that the two Acts are in pari materia so as to attract the rule relied on. Lastly, the rule of construction which is certainly not one of a compelling nature, is generally adopted in the construction of consolidating enactments where provisions which have appeared in earlier repealed statutes which have received an uniform and accepted judicial interpretation are re-enacted. Obviously that is not the case here. In the circumstances, we consider it unnecessary to examine whether this solitary decision on the construction of S. 4 of the Act of 1948, was correct. We have, therefore, no hesitation in rejecting the second point urged.The last submission was that the learned Judges were not right in considering that unless the construction of S. 13 which they accepted was correct, almost the entire body of displaced creditors would be without a remedy in respect of their claims against the Government of the State and the Union. Though the learned Advocate-General started by saying that in every case in which there could be a cause of action against the State Government under Para 8 of the Indian Independence (Liabilities) Order, 1947, a suit would lie after partition, even on the basis of S. 20 of the Civil Procedure Code, he had to concede that in a number of cases the party would be without a remedy. Apart from this admission, we consider that in a large number of cases the cause of action would have arisen in Lahore where the contract with the Government of the Province of Punjab was concluded and it is possible that no part of the cause of action might arise in India so as to permit a suit against the Government of the Punjab or of the Union if the provisions of the Civil Procedure Code determined the forum therefor. In our judgment nothing turns on the exact proportion of the cases, where the party would be without a remedy. If the terms of the enactment were ambiguous and had to be interpreted in the light of the circumstance whether the one construction or the other would leave parties without a remedy then in that event something might depend on whether it was only a marginal case that was beyond the provisions of the Act or the bulk of the cases. That, however, is not the position here. We have arrived at the construction of the provisions of the Act, without reference to the hardship which the opposite view might cause to particular displaced creditors. It is for this reason that we say that the question of the relative number of creditors who would suffer hardship is not strictly material for the decision. We have, therefore, thought it unnecessary to examine the precise circumstances in which displaced creditors might or might not be in a position to institute suits against the State Government to enforce claims which fell within Para 8 of the Independence (Liabilities) Order, 1947.In these circumstances, we consider, though for different reasons that the conclusion of the High Court was right and that the revision petitions were properly rejected. | 0 | 14,269 | 1,799 | ### Instruction:
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decision held, following these earlier rulings on the construction of the Civil Procedure Code, particularly S. 20 and other like enactments, that the provisions of S. 4 which enabled suits to be filed in India notwithstanding that the cause of action arose in Pakistan could not be availed of by displaced persons to file suits against the Government - of the State or of the Union.33. The net result of this construction was that in cases where no part of the action arose within India, no suit could be instituted against the State or the Union Government notwithstanding that by the combined operation of the Independence (Liabilities) Order, 1947, read with either S. 176 of the Government of India Act, or Art. 300 of the Constitution, as the case may be, a liability was cast on the Government of the State and the Union to make good a claim. This result might be unfortunate but if it was designed, there was no escape from that conclusion.34. The argument of the learned Advocate-General was that when this enactment of 1948 lapsed by efflux of time in 1951, its place was taken by the Act and that as the same word "person" with the qualifying expressions indicating his or its residence or place of business were repeated in the Act without any specific provision for claims against the State, Parliament must be taken to have affirmed this decision, adopting its reasoning and that consequently, in any event, the general rule of interpretation about the State not being bound by an enactment in which it is not named expressly or by necessary implication was doubly attracted and reinforced.35.We are clearly of the view that this argument does not deserve to be accepted. In the first place, we are concerned solely with the interpretation of the Act of 1951 and unless there was an ambiguity it would be impermissible to refer to any previous legislation for construing the words in it. The examination we have made of the Act read in conjunction with the purposes it seeks to achieve which are manifest in its various provisions have led us unmistakably to the conclusion which we have expressed earlier. In the circumstances, there is no scope for invoking this external aid to the construction of the expression used in the Act. Secondly, the scope of the two enactment viz., the Act of 1948 and that of 1951 are widely different, and the latter has a definitely more extended scope and is designed to secure substantive advantages to displaced persons which were wholly foreign to the earlier law which was but of very limited scope. Therefore even if the language used in the two enactments were identical - which is not even the case here - the same conclusion would not necessarily follow having regard to the differing scopes of the two pieces of legislation. It could not therefore be said that the two Acts are in pari materia so as to attract the rule relied on. Lastly, the rule of construction which is certainly not one of a compelling nature, is generally adopted in the construction of consolidating enactments where provisions which have appeared in earlier repealed statutes which have received an uniform and accepted judicial interpretation are re-enacted. Obviously that is not the case here. In the circumstances, we consider it unnecessary to examine whether this solitary decision on the construction of S. 4 of the Act of 1948, was correct. We have, therefore, no hesitation in rejecting the second point urged.36. The last submission was that the learned Judges were not right in considering that unless the construction of S. 13 which they accepted was correct, almost the entire body of displaced creditors would be without a remedy in respect of their claims against the Government of the State and the Union. Though the learned Advocate-General started by saying that in every case in which there could be a cause of action against the State Government under Para 8 of the Indian Independence (Liabilities) Order, 1947, a suit would lie after partition, even on the basis of S. 20 of the Civil Procedure Code, he had to concede that in a number of cases the party would be without a remedy. Apart from this admission, we consider that in a large number of cases the cause of action would have arisen in Lahore where the contract with the Government of the Province of Punjab was concluded and it is possible that no part of the cause of action might arise in India so as to permit a suit against the Government of the Punjab or of the Union if the provisions of the Civil Procedure Code determined the forum therefor. In our judgment nothing turns on the exact proportion of the cases, where the party would be without a remedy. If the terms of the enactment were ambiguous and had to be interpreted in the light of the circumstance whether the one construction or the other would leave parties without a remedy then in that event something might depend on whether it was only a marginal case that was beyond the provisions of the Act or the bulk of the cases. That, however, is not the position here. We have arrived at the construction of the provisions of the Act, without reference to the hardship which the opposite view might cause to particular displaced creditors. It is for this reason that we say that the question of the relative number of creditors who would suffer hardship is not strictly material for the decision. We have, therefore, thought it unnecessary to examine the precise circumstances in which displaced creditors might or might not be in a position to institute suits against the State Government to enforce claims which fell within Para 8 of the Independence (Liabilities) Order, 1947.37. In these circumstances, we consider, though for different reasons that the conclusion of the High Court was right and that the revision petitions were properly rejected.38.
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by a displaced creditor who seeks to enforce his claim against a displaced debtor. The second sub-section permits the displaced debtor to make an application under S. 5 and the two - the claim and what might be called a cross claim - have to be considered together, and the relief open to the displaced person who might be a debtor or a creditor have to be worked out conjointly.Confining oneself to what is strictly material "Debt" is defined as a pecuniary liability due to a "displaced person" from "any other person" ordinarily residing in the territory to which the Act extends. It was because of the circumstance that such a condition of residence would not be apt in the case of a State or Government as regards which no residence could be attributed, that it was said that the debt due by a State was not within the definition. That is, no doubt, a weighty argument and if it stood alone its effect could be over-whelming, but as against it must be noticed that it is really a part of the definition which has to be applied in the absence of anything to the contrary in the context and if on a consideration of S. 13 and the other relevant provisions to which we have referred it was the intention of the enactment not to exclude the State from its operation, the definition clause could not per se negative such a construction. The definition would, in the context of the other provisions, be read as applying the test of "residence" or "of carrying on business" exclusively to natural or artificial persons to whom such conditions would beare clearly of the view that this argument does not deserve to be accepted. In the first place, we are concerned solely with the interpretation of the Act of 1951 and unless there was an ambiguity it would be impermissible to refer to any previous legislation for construing the words in it. The examination we have made of the Act read in conjunction with the purposes it seeks to achieve which are manifest in its various provisions have led us unmistakably to the conclusion which we have expressed earlier. In the circumstances, there is no scope for invoking this external aid to the construction of the expression used in the Act. Secondly, the scope of the two enactment viz., the Act of 1948 and that of 1951 are widely different, and the latter has a definitely more extended scope and is designed to secure substantive advantages to displaced persons which were wholly foreign to the earlier law which was but of very limited scope. Therefore even if the language used in the two enactments were identical - which is not even the case here - the same conclusion would not necessarily follow having regard to the differing scopes of the two pieces of legislation. It could not therefore be said that the two Acts are in pari materia so as to attract the rule relied on. Lastly, the rule of construction which is certainly not one of a compelling nature, is generally adopted in the construction of consolidating enactments where provisions which have appeared in earlier repealed statutes which have received an uniform and accepted judicial interpretation are re-enacted. Obviously that is not the case here. In the circumstances, we consider it unnecessary to examine whether this solitary decision on the construction of S. 4 of the Act of 1948, was correct. We have, therefore, no hesitation in rejecting the second point urged.The last submission was that the learned Judges were not right in considering that unless the construction of S. 13 which they accepted was correct, almost the entire body of displaced creditors would be without a remedy in respect of their claims against the Government of the State and the Union. Though the learned Advocate-General started by saying that in every case in which there could be a cause of action against the State Government under Para 8 of the Indian Independence (Liabilities) Order, 1947, a suit would lie after partition, even on the basis of S. 20 of the Civil Procedure Code, he had to concede that in a number of cases the party would be without a remedy. Apart from this admission, we consider that in a large number of cases the cause of action would have arisen in Lahore where the contract with the Government of the Province of Punjab was concluded and it is possible that no part of the cause of action might arise in India so as to permit a suit against the Government of the Punjab or of the Union if the provisions of the Civil Procedure Code determined the forum therefor. In our judgment nothing turns on the exact proportion of the cases, where the party would be without a remedy. If the terms of the enactment were ambiguous and had to be interpreted in the light of the circumstance whether the one construction or the other would leave parties without a remedy then in that event something might depend on whether it was only a marginal case that was beyond the provisions of the Act or the bulk of the cases. That, however, is not the position here. We have arrived at the construction of the provisions of the Act, without reference to the hardship which the opposite view might cause to particular displaced creditors. It is for this reason that we say that the question of the relative number of creditors who would suffer hardship is not strictly material for the decision. We have, therefore, thought it unnecessary to examine the precise circumstances in which displaced creditors might or might not be in a position to institute suits against the State Government to enforce claims which fell within Para 8 of the Independence (Liabilities) Order, 1947.In these circumstances, we consider, though for different reasons that the conclusion of the High Court was right and that the revision petitions were properly rejected.
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Sushila Devi Vs. Pandit Krishna Kumar Missir & Others | chance witness and lastly that he was somewhat pompous at the time of giving evidence. The High Court, in our opinion, rightly declined to attach any importance to any of those circumstances. 7. Next we shall consider the evidence of Harihar Prased Upadhaya (A. W. 2), who was previously a Prof.of Engish in the Patna Science College. At the material time he was a Prof. of English in the Rajendra College, Chapra. His evidence was rejected by the trial court. His evidence is that he happened to go to the hospital at about the time when the will was being executed. He saw the will being read out to the testator and further he was present when the testator signed the will. He did not attest the will. He left the place when the will was being attested by others. He was not asked to attest the will. The only ground on which the testimony of this witness was rejected by the trial court was that if he was present at the time of the execution of the will, he would have been asked to attest it. The trial court overlooked the fact that as many as six persons had attested the will and therefore possibly the testator did not think it necessary to ask this witness also to attest the will. There are no good reasons to reject the testimony of this witness. We now come to the evidence of (A. W. 4) Shiva Shankar Roy. He has attested the will. At the material time he was the auditor of a Cooperative Society at Chapra. He had happened to go to the hospital on the day in question. There he was asked to attest the will. The ground on which the trial court rejected the testimony of this witness is that the father-in-law of Govindamani Tripathi was also an officer working in Cooperative department and hence the witness should be considered as being interested. The High Court rightly thought that merely because the father-in-law of Govindmani Tripathi and the attestor belonged to the same department the trial court should not have come to the conclusion that the witness had attested a forged will. 8. Next we may refer to the evidence of Kamla Prasad a clerk in the Local Board Office. He was a friend of the testator from a long time. According to him he used to call on the testator now and then when he was in the hospital. Two days prior to the execution of the will the testator asked him to come over to the hospital on the following Saturday as he had some private work with him. That is how he happened to go to the hospital on the day in question. He also appears to be a completely disinterested witness. No good reasons have been given by the trial court for rejecting his testimony. Then there is the evidence of Sachida Nand Prasad (A. W. 6), Head Master, Rajendra Collegiate School. He is also an attestor to the will. There is no reason to reject his testimony. 9. The scribe of the will who is also examined in this case is not a professional writer but he is a Tehsildar of a Zamindar. He was well known to the testator. The deceased had called him to write the will. The witnesses referred to above are independent and respectable witnesses. There are no good reasons to reject their testimony. 10. In addition to the evidence referred to earlier, we must refer to the evidence of two other persons viz. Srikrishnadev Prasad (A. W. 7), a leading advocate of Patna and Rai Brij Raj Krishna (A. W. 8), to whom we have already made reference. According to Srikrishnadeva Prasad, the testator consulted him about making a will in about the year 1935 and under his instructions he prepared a draft of a will for him. According to him the will propounded is more or less in line with the draft prepared by him. He spoke to the fact that even under the draft prepared by him, no bequest was made in favour of the appellant. It is not known whether the testator had made any will in pursuance of the draft given by Krishnadeva Prasad but from his evidence it is clear that even as far back as 1935, the testator was not intending to bequeath any property to his second daughter. His evidence further discloses that the testator was thinking that because he had performed the Upanayan of Govindmani Tripathi, got him married and is looking after him, Govindmani Tripathi in law had become his Putrika Putra and thus entitled to his properties. But the witness advised him that that is not the position in law; if he wanted that Govindmani Tripathi should succeed to his properties, he must execute a will and it is on the basis of that advice the testator asked the witness to prepare the draft of a will. This witness is a highly respectable person. There is no reason to disbelieve him. 11. The evidence of Rai Brij Raj Krishna has also considerable significance. Undoubtedly he is a very respectable person. By profession he is an advocate. As mentioned earlier, his family was the patron of the testator. The witness appears to have been a personal friend of the testator. According to the witness sometime prior to his death the testator discussed with him about making a will. He told him that he is desirous of bequeathing all his properties to Govindmani Tripathi as he, considered him as his adopted son. The witness advised him that he should bequeath some property to his second daughter also. But then the testator told him that he had given her some money and he proposed to give her some more money. But he would not be giving her any immovable property. This evidence, which is clearly acceptable goes to prove that the bequest made by the testator cannot be considered as unnatural. | 0[ds]The High Court did attach significance to the circumstance that no bequest under the will had been made to the appellant though the testator loved her as much as his elder daughter Monorama. But on the basis of the evidence on record, it opined that the testator was treating Govindmani Tripathi as his Putrika Putra and in fact he was thinking of bequeathing all his properties to him. The High Court also relied on the evidence adduced in the case that the testator must have paid some cash to the appellant before the execution of the will and further he must have thought that there was no need to make any bequest in her favour as her husband, a Muktyar was reasonably well placed in life whereas his firstw Kamla Prasadmani Tripathi and his son Govindmani Tripathi were dependent on him for their livelihood5. Prima facie, the circumstance that no bequest was made to the appellant by the testator would make the will appear unnatural but if the execution of the will is satisfactorily proved, the fact that the testator had not bequeathed any property to one of his children cannot make the will invalid. If the bequest made in a will appears to be unnatural then the court has to scrutinise the evidence in support of the execution of the will with a greater degree of care than usual, because every person must be presumed to act in accordance with the normal human behaviour but them is no gainsaying the fact that some individuals do behave in an abnormal manner. Judges cannot impose their own standard of behaviour on those who execute wills. As observed by this Court in H. Venkatachala Iyengar v. B. N. Thimmajamma, (1959) Supp (1) SCR 426=(AIR 1959 SC 443 ) that the made of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by S. 63 of the Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the profounder and in absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where, however, there are suspicious circumstances the onus would be on the profounder to explain them to the satisfaction of the court before the will can be accepted as genuineThe evidence on record discloses that a day or two earlier to the execution of the will the testator who was in the Government hospital at Chapra requested his friend, Kamla Prasad (A. W. 5), a clerk in the Local Board Office who had called on him in the hospital to come to the hospital on Saturday following, telling him that he had some private work with him. Similarly he had asked the scribe of the will, a Tehsildar of a Zamindar to come there on that day. The evidence further discloses that some of the persons who had attested the will had come to the hospital to call on the testator and that they were asked to attest the will. The question for decision is whether the evidence of the scribe and the attestors can be relied on. One of the attestors of the will is Prof. H. K. Narain. At the relevant time he was the professor and Head of Department of Commerce in Rajendra College. He was also a Fellow of the Patna University. He is not shown to be interested in any of the beneficiaries under the will. Undoubtedly he was a friend of the testator. He used to visit the testator when he was in the hospital. It appears that several important persons were visiting the testator when he was in the hospital. The trial court refused to place faith on his testimony firstly on the ground that he had not been invited to attest the will, secondly that he was a chance witness and lastly that he was somewhat pompous at the time of giving evidence. The High Court, in our opinion, rightly declined to attach any importance to any of those circumstancesThere are no good reasons to reject the testimony of this witness. We now come to the evidence of (A. W. 4) Shiva Shankar Roy. He has attested the will. At the material time he was the auditor of a Cooperative Society at Chapra. He had happened to go to the hospital on the day in question. There he was asked to attest the will. The ground on which the trial court rejected the testimony of this witness is that thew of Govindamani Tripathi was also an officer working in Cooperative department and hence the witness should be considered as being interested. The High Court rightly thought that merely because thew of Govindmani Tripathi and the attestor belonged to the same department the trial court should not have come to the conclusion that the witness had attested a forged will9. The scribe of the will who is also examined in this case is not a professional writer but he is a Tehsildar of a Zamindar. He was well known to the testator. The deceased had called him to write the will. The witnesses referred to above are independent and respectable witnesses. There are no good reasons to reject their testimony10. In addition to the evidence referred to earlier, we must refer to the evidence of two other persons viz. Srikrishnadev Prasad (A. W. 7), a leading advocate of Patna and Rai Brij Raj Krishna (A. W. 8), to whom we have already made reference. According to Srikrishnadeva Prasad, the testator consulted him about making a will in about the year 1935 and under his instructions he prepared a draft of a will for him. According to him the will propounded is more or less in line with the draft prepared by him. He spoke to the fact that even under the draft prepared by him, no bequest was made in favour of the appellant. It is not known whether the testator had made any will in pursuance of the draft given by Krishnadeva Prasad but from his evidence it is clear that even as far back as 1935, the testator was not intending to bequeath any property to his second daughter. His evidence further discloses that the testator was thinking that because he had performed the Upanayan of Govindmani Tripathi, got him married and is looking after him, Govindmani Tripathi in law had become his Putrika Putra and thus entitled to his properties. But the witness advised him that that is not the position in law; if he wanted that Govindmani Tripathi should succeed to his properties, he must execute a will and it is on the basis of that advice the testator asked the witness to prepare the draft of a will. This witness is a highly respectable person. There is no reason to disbelieve him11. The evidence of Rai Brij Raj Krishna has also considerable significance. Undoubtedly he is a very respectable person. By profession he is an advocate. As mentioned earlier, his family was the patron of the testator. The witness appears to have been a personal friend of the testator. According to the witness sometime prior to his death the testator discussed with him about making a will. He told him that he is desirous of bequeathing all his properties to Govindmani Tripathi as he, considered him as his adopted son. The witness advised him that he should bequeath some property to his second daughter also. But then the testator told him that he had given her some money and he proposed to give her some more money. But he would not be giving her any immovable property. This evidence, which is clearly acceptable goes to prove that the bequest made by the testator cannot be considered as unnatural. | 0 | 3,196 | 1,442 | ### Instruction:
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chance witness and lastly that he was somewhat pompous at the time of giving evidence. The High Court, in our opinion, rightly declined to attach any importance to any of those circumstances. 7. Next we shall consider the evidence of Harihar Prased Upadhaya (A. W. 2), who was previously a Prof.of Engish in the Patna Science College. At the material time he was a Prof. of English in the Rajendra College, Chapra. His evidence was rejected by the trial court. His evidence is that he happened to go to the hospital at about the time when the will was being executed. He saw the will being read out to the testator and further he was present when the testator signed the will. He did not attest the will. He left the place when the will was being attested by others. He was not asked to attest the will. The only ground on which the testimony of this witness was rejected by the trial court was that if he was present at the time of the execution of the will, he would have been asked to attest it. The trial court overlooked the fact that as many as six persons had attested the will and therefore possibly the testator did not think it necessary to ask this witness also to attest the will. There are no good reasons to reject the testimony of this witness. We now come to the evidence of (A. W. 4) Shiva Shankar Roy. He has attested the will. At the material time he was the auditor of a Cooperative Society at Chapra. He had happened to go to the hospital on the day in question. There he was asked to attest the will. The ground on which the trial court rejected the testimony of this witness is that the father-in-law of Govindamani Tripathi was also an officer working in Cooperative department and hence the witness should be considered as being interested. The High Court rightly thought that merely because the father-in-law of Govindmani Tripathi and the attestor belonged to the same department the trial court should not have come to the conclusion that the witness had attested a forged will. 8. Next we may refer to the evidence of Kamla Prasad a clerk in the Local Board Office. He was a friend of the testator from a long time. According to him he used to call on the testator now and then when he was in the hospital. Two days prior to the execution of the will the testator asked him to come over to the hospital on the following Saturday as he had some private work with him. That is how he happened to go to the hospital on the day in question. He also appears to be a completely disinterested witness. No good reasons have been given by the trial court for rejecting his testimony. Then there is the evidence of Sachida Nand Prasad (A. W. 6), Head Master, Rajendra Collegiate School. He is also an attestor to the will. There is no reason to reject his testimony. 9. The scribe of the will who is also examined in this case is not a professional writer but he is a Tehsildar of a Zamindar. He was well known to the testator. The deceased had called him to write the will. The witnesses referred to above are independent and respectable witnesses. There are no good reasons to reject their testimony. 10. In addition to the evidence referred to earlier, we must refer to the evidence of two other persons viz. Srikrishnadev Prasad (A. W. 7), a leading advocate of Patna and Rai Brij Raj Krishna (A. W. 8), to whom we have already made reference. According to Srikrishnadeva Prasad, the testator consulted him about making a will in about the year 1935 and under his instructions he prepared a draft of a will for him. According to him the will propounded is more or less in line with the draft prepared by him. He spoke to the fact that even under the draft prepared by him, no bequest was made in favour of the appellant. It is not known whether the testator had made any will in pursuance of the draft given by Krishnadeva Prasad but from his evidence it is clear that even as far back as 1935, the testator was not intending to bequeath any property to his second daughter. His evidence further discloses that the testator was thinking that because he had performed the Upanayan of Govindmani Tripathi, got him married and is looking after him, Govindmani Tripathi in law had become his Putrika Putra and thus entitled to his properties. But the witness advised him that that is not the position in law; if he wanted that Govindmani Tripathi should succeed to his properties, he must execute a will and it is on the basis of that advice the testator asked the witness to prepare the draft of a will. This witness is a highly respectable person. There is no reason to disbelieve him. 11. The evidence of Rai Brij Raj Krishna has also considerable significance. Undoubtedly he is a very respectable person. By profession he is an advocate. As mentioned earlier, his family was the patron of the testator. The witness appears to have been a personal friend of the testator. According to the witness sometime prior to his death the testator discussed with him about making a will. He told him that he is desirous of bequeathing all his properties to Govindmani Tripathi as he, considered him as his adopted son. The witness advised him that he should bequeath some property to his second daughter also. But then the testator told him that he had given her some money and he proposed to give her some more money. But he would not be giving her any immovable property. This evidence, which is clearly acceptable goes to prove that the bequest made by the testator cannot be considered as unnatural.
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be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the profounder and in absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where, however, there are suspicious circumstances the onus would be on the profounder to explain them to the satisfaction of the court before the will can be accepted as genuineThe evidence on record discloses that a day or two earlier to the execution of the will the testator who was in the Government hospital at Chapra requested his friend, Kamla Prasad (A. W. 5), a clerk in the Local Board Office who had called on him in the hospital to come to the hospital on Saturday following, telling him that he had some private work with him. Similarly he had asked the scribe of the will, a Tehsildar of a Zamindar to come there on that day. The evidence further discloses that some of the persons who had attested the will had come to the hospital to call on the testator and that they were asked to attest the will. The question for decision is whether the evidence of the scribe and the attestors can be relied on. One of the attestors of the will is Prof. H. K. Narain. At the relevant time he was the professor and Head of Department of Commerce in Rajendra College. He was also a Fellow of the Patna University. He is not shown to be interested in any of the beneficiaries under the will. Undoubtedly he was a friend of the testator. He used to visit the testator when he was in the hospital. It appears that several important persons were visiting the testator when he was in the hospital. The trial court refused to place faith on his testimony firstly on the ground that he had not been invited to attest the will, secondly that he was a chance witness and lastly that he was somewhat pompous at the time of giving evidence. The High Court, in our opinion, rightly declined to attach any importance to any of those circumstancesThere are no good reasons to reject the testimony of this witness. We now come to the evidence of (A. W. 4) Shiva Shankar Roy. He has attested the will. At the material time he was the auditor of a Cooperative Society at Chapra. He had happened to go to the hospital on the day in question. There he was asked to attest the will. The ground on which the trial court rejected the testimony of this witness is that thew of Govindamani Tripathi was also an officer working in Cooperative department and hence the witness should be considered as being interested. The High Court rightly thought that merely because thew of Govindmani Tripathi and the attestor belonged to the same department the trial court should not have come to the conclusion that the witness had attested a forged will9. The scribe of the will who is also examined in this case is not a professional writer but he is a Tehsildar of a Zamindar. He was well known to the testator. The deceased had called him to write the will. The witnesses referred to above are independent and respectable witnesses. There are no good reasons to reject their testimony10. In addition to the evidence referred to earlier, we must refer to the evidence of two other persons viz. Srikrishnadev Prasad (A. W. 7), a leading advocate of Patna and Rai Brij Raj Krishna (A. W. 8), to whom we have already made reference. According to Srikrishnadeva Prasad, the testator consulted him about making a will in about the year 1935 and under his instructions he prepared a draft of a will for him. According to him the will propounded is more or less in line with the draft prepared by him. He spoke to the fact that even under the draft prepared by him, no bequest was made in favour of the appellant. It is not known whether the testator had made any will in pursuance of the draft given by Krishnadeva Prasad but from his evidence it is clear that even as far back as 1935, the testator was not intending to bequeath any property to his second daughter. His evidence further discloses that the testator was thinking that because he had performed the Upanayan of Govindmani Tripathi, got him married and is looking after him, Govindmani Tripathi in law had become his Putrika Putra and thus entitled to his properties. But the witness advised him that that is not the position in law; if he wanted that Govindmani Tripathi should succeed to his properties, he must execute a will and it is on the basis of that advice the testator asked the witness to prepare the draft of a will. This witness is a highly respectable person. There is no reason to disbelieve him11. The evidence of Rai Brij Raj Krishna has also considerable significance. Undoubtedly he is a very respectable person. By profession he is an advocate. As mentioned earlier, his family was the patron of the testator. The witness appears to have been a personal friend of the testator. According to the witness sometime prior to his death the testator discussed with him about making a will. He told him that he is desirous of bequeathing all his properties to Govindmani Tripathi as he, considered him as his adopted son. The witness advised him that he should bequeath some property to his second daughter also. But then the testator told him that he had given her some money and he proposed to give her some more money. But he would not be giving her any immovable property. This evidence, which is clearly acceptable goes to prove that the bequest made by the testator cannot be considered as unnatural.
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United Bank Of India Vs. Off. Liquidator,H.C.Of Calcutta | of judicial discretion. This aspect is reiterated by the Court by holding that the aforesaid principles must govern every court sale. The Court has also observed that failure to apply its mind to the material factors bearing on the reasonableness of the price offered may amount to material irregularity in conduct of sale Thereafter the Court pertinently observed : (SCC p. 219, para 9) "And where a court mechanically conducts the sale or routinely signs assent to the sale papers, not bothering to see if the offer is too low and a better price could have been obtained, and in fact the price is substantially inadequate, there is the presence of both the elements of irregularity and injury."It is further observed : (SCC p. 220, para 9) " What is expected of the Judge is not to be prophet but a pragmatist and merely to make a realistic appraisal of the factors, and, if satisfied that, in the given circumstances, the bid is acceptable, conclude the sale" * 14. As discussed above, in the present case, there is total non-application of mind to the material which is required to be considered for auction-sale of the assets of the Company 15. Learned counsel for Respondent 2 referred to the decision of this Court in Ram Maurya v. Kailash Nath (1999 SC 1359) and submitted that as secured creditors have not brought appropriate pleading before the learned Company Judge, this Court should not interfere in such sale. In our view, the said decision has no bearing on the facts of the present case as the case was decided on the basis of auction-sale under Order 21 Rule 90 of CPC and the Court has observed that the judgment-debtor did not furnish adequate materials to substantiate the allegation of fraud and material irregularity 16. Further, learned counsel relied on the decision in Motors and Investments Ltd. v. New Bank of India (1996 SC 1413) and contended that the court in the alternative may direct refund of the amount deposited and invested by the bona fide auction-purchaser with 18% interest. In that case, the Court has set aside the sale of 44 acres of land by holding that it was sold at too inadequate price. In the said case also the Court has observed : (SCC p. 273, para 5) "Equally, though court sale is compulsive sale, equal endeavour should be made to fetch adequate price for the property sold so that the decree debt would get satisfied and surplus, if any, could be paid over to the judgment-debtor." * 17. The Court further ordered that in case the official assignee has kept the sale amount in any interest-earning security, the principal amount together with interest is directed to be refunded to the appellant. And, in case the amount was not kept in any deposit and was used to discharge outstanding debt due by Respondents 2 and 3, the auction-purchaser was entitled to get interest at 18% per annum on the amount deposited by himIn the present case, the said judgment has no bearing mainly because as soon as the amount was deposited by Respondent 2, possession of the property was handed over to him. Not only that, in our view, similar contention was dealt with in Allahabad Bank v. Bengal Paper Mills case (1999 SC 1099) and is rejected by assigning the following reasons : (SCC p. 394, para 24) "It could not have turned a blind eye to the many defects that it itself noted in the order of sale merely because the Banks had moved the appeals after five months; nor was there any justification for taking into consideration the expenditure that had been incurred by the second respondent subsequent to its possession of the assets and properties. In the first place, the Division Bench should have noted that the learned Single Judge had with unseemly haste ordered possession thereof to be handed over to the second respondent on the very next day. In the second place, the appeals had been filed within the period of limitation. Expenditure incurred during this period could not render the appeals, in effect, infructuous. The same would apply to expenditure incurred subsequent to the filing of the appeals and until the time that they were heard. The second respondent knew that the appeals were pending and that they could end in the order of sale being set aside. Such expenditure as it incurred with this knowledge was at its risk. In the third place, and most important, the interests of the creditors of the Company, particularly the unsecured creditors, overweighed such equities, if any, as might have been considered to be in favour of the second respondent. It was, in our view, the obligation of the Division Bench to have struck down the order of sale, having regard to what it found wrong with it." * 18. Thereafter the Court has directed refund of the amount without any interest and has permitted the auction-purchaser to apply to the High Court and specify it firstly that expenditure was incurred and secondly that in law it was entitled to recover it 19. For the reasons stated, same would be the position in the present case. Further, in this case, there is a specific condition of the auction-sale which reads thus "The High Court may set aside the sale in favour of purchaser/purchasers even after the sale is confirmed and/or purchase consideration is paid on such terms and conditions as the Court may deem fit and proper for the interest and benefits of creditors, contributories and all concerned and/or for public interest." * 20. Hence, if the sale is set aside in appeal, it cannot be stated that the purchaser is entitled to have refund of the amount with interest 21. We also make it clear that we have not dealt with the contention of the learned counsel for the Bank that what was sold in auction was equity of redemption and not the rights of the mortgagee | 1[ds]8. At the outset, we would state that in proceedings for winding up of the company under liquidation, the court acts as a custodian for the interest of the company and the creditors. Therefore, before sanctioning the sale of its assets, the court is required to exercise judicial discretion to see that properties are sold at a reasonable price. For deciding what would be a reasonable price, valuation report of an expert is must. Not only that, it is the duty of the court to disclose the said valuation report to the secured creditors and other interested persons including the offerors. Further, it is the duty of the court to apply its mind to the valuation report for verifying whether the report indicates reasonable market value of the property to be auctioned, even if objections are not raisedFrom the facts narrated above, it is apparent that the attention of learned Company Judge was not focussed to the fact that since 1980 the Company was closed and that there was no question of selling the Companys assets as a going concern. Not only that it was the duty of the Court to verify the statement made by some applicant that sale of the Company ons basis" will affect 1200 workers and for that proper notice was required to be issued to the secured creditors for whose benefit the property was to be auctioned. To straight away rely upon such statement was, to say the least, not judicious. The Company Judge ought to have also considered the fact that an attempt made by BIFR and AAIFR which are expert bodies under SICA to revive the sick unit had failed. In any set of circumstances, there was no material on record before the learned Judge for holding that the Company could be revived and the employees would be reinstated in service by giving them. Without indulging in any such exercise straight away to state that property would be sold as a going concern was totally without any basis and, therefore, unjustified. At the time of hearing of this matter it is admitted that after purchase of the Company, it was restarted only for one day i.e. on the day of inauguration9. It also appears that the Division Bench was persuaded by thed sympathy for the workers, without verification of the fact that the Company was closed before 17 years of sale. The Court has noted in the beginning while narrating the submission of the learned counsel who appeared for the benefit of the employees that more than 100 employees were starving to death and in the later para stated that the Court was informed by the learned advocate appearing for the employees union that more than 100 employees have already died. Without there being any application on record and without there being proper verification of the facts from the parties concerned, it is not just and proper to make such observations. It is not impossible that because of the lapse of 17 years, out of 1200 workers who might have worked in the said factory 100 employees might have died a natural death. But in any circumstances it was unjustified to make a case over it and to accept oral submissions and to dispose of the valuable properties of a Company by stating that the sale of the Company as a going concern was for the benefit of thed employees who were not in employmentFurther, in the present case, it is admitted that valuation report was called for by order dated; once the report was called for, it was the duty of the Court to see that copy of the said report is given to the secured creditors and other affected persons. It was known to the Court that the appellant secured creditor was claiming more than Rs. 4 crores from the Company. It appears that valuation report was kept as a secret, confidential document. Afterp order, the properties of the Company are in the custody of the Court for the benefit of the secured creditors and if anything remains, thereafter for other creditors and its shareholders. In the present case, without disclosing the valuation report to the creditors and without fixing its reserve price, the properties were auctioned and the sale was confirmed. This approach is unjustifiable by any judicial standard and is against the normal procedure for auctioning the immovable property of the Company which is to be wound up10. Further, it appears that learned Judge has not applied his mind to the valuation report itself. He has only considered the last figures given in the valuation report which says that total valuation of the property was Rs. 66, 19, 032. Had the Court considered the report, it would have immediately noticed that the valuation report was not at all reliable11. In our view the valuer stating that for the purpose of valuation of the land he has enquired from local people and that he understood that the land price in this particular area varies between Rs. 2 lakhs to 2.5 lakhs per katta cannot be said to be an opinion of an expert valuer. He has not relied upon any sale instance for arriving at the conclusion that the valuation varies from Rs. 2 to 2.5 lakhs per katta. He has also not stated from whom he has verified the value of the land. Further, he has stated that after considering all aspects, he felt that fair and reasonable value would be Rs. 2 lakhs per katta. Presuming that valuation of land is Rs. 2 lakhs per katta then also the value of the land, admeasuring 67 kattas and 8 chattak, would be more than Rs. 1.35 crore. Thereafter, he stated the land is a leasehold land, so the value of the land would be on the basis of its rental income and he arrived at the conclusion that its value would be only Rs. 4, 09, 860. It appears that the valuer has also not considered the material fact that lease period was for 99 years with the condition for its renewal. It is apparent that learned Company Judge has simply noted the final figures mentioned in valuation report and accepted the same without applying his mind to the aforesaid factsIn our view, this submission requires to be rejected on the ground that in the said case, the Court has reproduced the paragraph which we have quoted above from the decision in Navalkha and Sons (1969 SC 379) wherein the Court has specifically held that the condition of confirmation by the court operates as a safeguard against the property being sold at inadequate price whether or not it is a consequence of any irregularity or fraud in the conduct of the sale; the court is required to satisfy itself that having regard to the market value of the property the price offered is reasonable; unless the court is satisfied about the adequacy of the price the act of confirmation of sale would not be a proper exercise of judicial discretion. This aspect is reiterated by the Court by holding that the aforesaid principles must govern every court sale. The Court has also observed that failure to apply its mind to the material factors bearing on the reasonableness of the price offered may amount to material irregularity in conduct of sale14. As discussed above, in the present case, there is totaln of mind to the material which is required to be considered fore of the assets of the Company17. The Court further ordered that in case the official assignee has kept the sale amount in anyg security, the principal amount together with interest is directed to be refunded to the appellant. And, in case the amount was not kept in any deposit and was used to discharge outstanding debt due by Respondents 2 and 3, ther was entitled to get interest at 18% per annum on the amount deposited by himIn the present case, the said judgment has no bearing mainly because as soon as the amount was deposited by Respondent 2, possession of the property was handed over to him. Not only that, in our view, similar contention was dealt with in Allahabad Bank v. Bengal Paper Mills case (1999 SC 1099)18. Thereafter the Court has directed refund of the amount without any interest and has permitted ther to apply to the High Court and specify it firstly that expenditure was incurred and secondly that in law it was entitled to recover it19. For the reasons stated, same would be the position in the present case. Further, in this case, there is a specific condition of thee which reads thus"The High Court may set aside the sale in favour of purchaser/purchasers even after the sale is confirmed and/or purchase consideration is paid on such terms and conditions as the Court may deem fit and proper for the interest and benefits of creditors, contributories and all concerned and/or for public interest." *20. Hence, if the sale is set aside in appeal, it cannot be stated that the purchaser is entitled to have refund of the amount with interest21. We also make it clear that we have not dealt with the contention of the learned counsel for the Bank that what was sold in auction was equity of redemption and not the rights of the mortgagee | 1 | 5,129 | 1,683 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
of judicial discretion. This aspect is reiterated by the Court by holding that the aforesaid principles must govern every court sale. The Court has also observed that failure to apply its mind to the material factors bearing on the reasonableness of the price offered may amount to material irregularity in conduct of sale Thereafter the Court pertinently observed : (SCC p. 219, para 9) "And where a court mechanically conducts the sale or routinely signs assent to the sale papers, not bothering to see if the offer is too low and a better price could have been obtained, and in fact the price is substantially inadequate, there is the presence of both the elements of irregularity and injury."It is further observed : (SCC p. 220, para 9) " What is expected of the Judge is not to be prophet but a pragmatist and merely to make a realistic appraisal of the factors, and, if satisfied that, in the given circumstances, the bid is acceptable, conclude the sale" * 14. As discussed above, in the present case, there is total non-application of mind to the material which is required to be considered for auction-sale of the assets of the Company 15. Learned counsel for Respondent 2 referred to the decision of this Court in Ram Maurya v. Kailash Nath (1999 SC 1359) and submitted that as secured creditors have not brought appropriate pleading before the learned Company Judge, this Court should not interfere in such sale. In our view, the said decision has no bearing on the facts of the present case as the case was decided on the basis of auction-sale under Order 21 Rule 90 of CPC and the Court has observed that the judgment-debtor did not furnish adequate materials to substantiate the allegation of fraud and material irregularity 16. Further, learned counsel relied on the decision in Motors and Investments Ltd. v. New Bank of India (1996 SC 1413) and contended that the court in the alternative may direct refund of the amount deposited and invested by the bona fide auction-purchaser with 18% interest. In that case, the Court has set aside the sale of 44 acres of land by holding that it was sold at too inadequate price. In the said case also the Court has observed : (SCC p. 273, para 5) "Equally, though court sale is compulsive sale, equal endeavour should be made to fetch adequate price for the property sold so that the decree debt would get satisfied and surplus, if any, could be paid over to the judgment-debtor." * 17. The Court further ordered that in case the official assignee has kept the sale amount in any interest-earning security, the principal amount together with interest is directed to be refunded to the appellant. And, in case the amount was not kept in any deposit and was used to discharge outstanding debt due by Respondents 2 and 3, the auction-purchaser was entitled to get interest at 18% per annum on the amount deposited by himIn the present case, the said judgment has no bearing mainly because as soon as the amount was deposited by Respondent 2, possession of the property was handed over to him. Not only that, in our view, similar contention was dealt with in Allahabad Bank v. Bengal Paper Mills case (1999 SC 1099) and is rejected by assigning the following reasons : (SCC p. 394, para 24) "It could not have turned a blind eye to the many defects that it itself noted in the order of sale merely because the Banks had moved the appeals after five months; nor was there any justification for taking into consideration the expenditure that had been incurred by the second respondent subsequent to its possession of the assets and properties. In the first place, the Division Bench should have noted that the learned Single Judge had with unseemly haste ordered possession thereof to be handed over to the second respondent on the very next day. In the second place, the appeals had been filed within the period of limitation. Expenditure incurred during this period could not render the appeals, in effect, infructuous. The same would apply to expenditure incurred subsequent to the filing of the appeals and until the time that they were heard. The second respondent knew that the appeals were pending and that they could end in the order of sale being set aside. Such expenditure as it incurred with this knowledge was at its risk. In the third place, and most important, the interests of the creditors of the Company, particularly the unsecured creditors, overweighed such equities, if any, as might have been considered to be in favour of the second respondent. It was, in our view, the obligation of the Division Bench to have struck down the order of sale, having regard to what it found wrong with it." * 18. Thereafter the Court has directed refund of the amount without any interest and has permitted the auction-purchaser to apply to the High Court and specify it firstly that expenditure was incurred and secondly that in law it was entitled to recover it 19. For the reasons stated, same would be the position in the present case. Further, in this case, there is a specific condition of the auction-sale which reads thus "The High Court may set aside the sale in favour of purchaser/purchasers even after the sale is confirmed and/or purchase consideration is paid on such terms and conditions as the Court may deem fit and proper for the interest and benefits of creditors, contributories and all concerned and/or for public interest." * 20. Hence, if the sale is set aside in appeal, it cannot be stated that the purchaser is entitled to have refund of the amount with interest 21. We also make it clear that we have not dealt with the contention of the learned counsel for the Bank that what was sold in auction was equity of redemption and not the rights of the mortgagee
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1
### Explanation:
Company as a going concern was for the benefit of thed employees who were not in employmentFurther, in the present case, it is admitted that valuation report was called for by order dated; once the report was called for, it was the duty of the Court to see that copy of the said report is given to the secured creditors and other affected persons. It was known to the Court that the appellant secured creditor was claiming more than Rs. 4 crores from the Company. It appears that valuation report was kept as a secret, confidential document. Afterp order, the properties of the Company are in the custody of the Court for the benefit of the secured creditors and if anything remains, thereafter for other creditors and its shareholders. In the present case, without disclosing the valuation report to the creditors and without fixing its reserve price, the properties were auctioned and the sale was confirmed. This approach is unjustifiable by any judicial standard and is against the normal procedure for auctioning the immovable property of the Company which is to be wound up10. Further, it appears that learned Judge has not applied his mind to the valuation report itself. He has only considered the last figures given in the valuation report which says that total valuation of the property was Rs. 66, 19, 032. Had the Court considered the report, it would have immediately noticed that the valuation report was not at all reliable11. In our view the valuer stating that for the purpose of valuation of the land he has enquired from local people and that he understood that the land price in this particular area varies between Rs. 2 lakhs to 2.5 lakhs per katta cannot be said to be an opinion of an expert valuer. He has not relied upon any sale instance for arriving at the conclusion that the valuation varies from Rs. 2 to 2.5 lakhs per katta. He has also not stated from whom he has verified the value of the land. Further, he has stated that after considering all aspects, he felt that fair and reasonable value would be Rs. 2 lakhs per katta. Presuming that valuation of land is Rs. 2 lakhs per katta then also the value of the land, admeasuring 67 kattas and 8 chattak, would be more than Rs. 1.35 crore. Thereafter, he stated the land is a leasehold land, so the value of the land would be on the basis of its rental income and he arrived at the conclusion that its value would be only Rs. 4, 09, 860. It appears that the valuer has also not considered the material fact that lease period was for 99 years with the condition for its renewal. It is apparent that learned Company Judge has simply noted the final figures mentioned in valuation report and accepted the same without applying his mind to the aforesaid factsIn our view, this submission requires to be rejected on the ground that in the said case, the Court has reproduced the paragraph which we have quoted above from the decision in Navalkha and Sons (1969 SC 379) wherein the Court has specifically held that the condition of confirmation by the court operates as a safeguard against the property being sold at inadequate price whether or not it is a consequence of any irregularity or fraud in the conduct of the sale; the court is required to satisfy itself that having regard to the market value of the property the price offered is reasonable; unless the court is satisfied about the adequacy of the price the act of confirmation of sale would not be a proper exercise of judicial discretion. This aspect is reiterated by the Court by holding that the aforesaid principles must govern every court sale. The Court has also observed that failure to apply its mind to the material factors bearing on the reasonableness of the price offered may amount to material irregularity in conduct of sale14. As discussed above, in the present case, there is totaln of mind to the material which is required to be considered fore of the assets of the Company17. The Court further ordered that in case the official assignee has kept the sale amount in anyg security, the principal amount together with interest is directed to be refunded to the appellant. And, in case the amount was not kept in any deposit and was used to discharge outstanding debt due by Respondents 2 and 3, ther was entitled to get interest at 18% per annum on the amount deposited by himIn the present case, the said judgment has no bearing mainly because as soon as the amount was deposited by Respondent 2, possession of the property was handed over to him. Not only that, in our view, similar contention was dealt with in Allahabad Bank v. Bengal Paper Mills case (1999 SC 1099)18. Thereafter the Court has directed refund of the amount without any interest and has permitted ther to apply to the High Court and specify it firstly that expenditure was incurred and secondly that in law it was entitled to recover it19. For the reasons stated, same would be the position in the present case. Further, in this case, there is a specific condition of thee which reads thus"The High Court may set aside the sale in favour of purchaser/purchasers even after the sale is confirmed and/or purchase consideration is paid on such terms and conditions as the Court may deem fit and proper for the interest and benefits of creditors, contributories and all concerned and/or for public interest." *20. Hence, if the sale is set aside in appeal, it cannot be stated that the purchaser is entitled to have refund of the amount with interest21. We also make it clear that we have not dealt with the contention of the learned counsel for the Bank that what was sold in auction was equity of redemption and not the rights of the mortgagee
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National Coal Development Corporation Vs. Manmohan Mathur | Coal Bearing Areas (Acquisition and Development) Amendment Act XXIII of 1969 was enacted. By this amending Act Section 28 (3) was amended by removal of certain words and substitution retrospectively of other words. The amending Act also added a new sub-section, numbered 3A and also enacted Section 3 by which the validation of acquisitions found ineffective by the Courts was made. It is necessary to refer to the amending Act. 7. Sub-section (3) of Section 28, as amended by Act 51 of 1957 (to which Act detailed reference is not necessary), reads as follows:"Any objection preferred under Section 5A of the said Act (Land Acquisition Act, 1894) in respect of any land covered by any notification issued under Section 4 of the said Act (Land Acquisition Act, 1894) shall be deemed to be an objection preferred under Section 8 of this Act to the relevant competent authority and may be disposed of by him as if the objection had been made in relation to a notification issued under Section 7 of this Act in respect of such land; and the Central Government may at any time make a declaration under Section 9 of this Act (Act XX of 1957) in respect of such land or any part thereof." 8. By the amending Act XXIII of 1969 the portions beginning with "in respect of such land" and ending with "or any part thereof" were substituted retrospectively by the words-"in respect of such land or of any rights in or over such land; and the Central Government may at any time make a declaration under Section 9 of this Act in respect of land or any part thereof or any rights in or over such land or part." 9. Simultaneously sub-section (3-A) was introduced and that reads:"(3A) Where in respect of any land covered by any notification issued under Section 4 of the said Act, no objection has been preferred under Section 5A thereof within the period specified in that section, then it shall be deemed that a notification had been issued under Section 7 of this Act in respect of such land or of any rights in or over such land and that no objection to the acquisition of the land or any rights in or over land had been preferred under Section 8 of this Act, and accordingly the Central Government may at any time make a declaration under Section 9 of this Act in respect of the land or any part thereof or any rights in or over such land or part." 10. Finally by section 3 of the Amending Act acquisitions were validated. Section 3 reads:3. Validation of certain acquisitions. Notwithstanding any judgment, decree or order of any court, every acquisition of land or the rights in or over land made by the Central Government in pursuance of the notifications of the Government of India in the late Ministry of Steel, Mines and Fuel (Department of Mines and Fuel) Nos. S. O. 1759 and S. O. 25, dated the 7th August, 1958, and the 22nd December, 1959, respectively, made under Section 9 of the principal Act, shall be and shall be deemed always to have been, as valid as if the provisions of Section 28 thereof as amended by this Act were in force at all material times when such acquisition was made and shall not be called in question in any Court of law on the ground only that before issuing such notifications no notification was issued under Section 7 of the principal Act in relation to the land or rights in or over such land covered by the said notifications Nos. S. O. 1759 and S. O. 25". 11. In view of this amendment it is obvious that now under the scheme of Act XX of 1957, as amended by Act 51 of 1957 and Act XXIII of 1969 a notification under Section 4 (1) of the Land Acquisition Act, 1894, is by fiction a notification under Section 4 of Act XX of 1957; an objection under Section5 A of the Land Acquisition Act, 1894 is deemed to be an objection under Section 8 of Act XX of 1957. It is also provided that if no objection had been preferred under Section 5A of the Land Acquisition Act, 1894 within the period specified in that Act, then it shall be deemed that a notification has been issued under S. 7 of this Act in respect of the land and further that no objection to the acquisition of the land or any rights in or over that land has been preferred under Section 8 of the Act and accordingly the Central Government may at any time make a declaration under Section 9 of Act XX of 1957 in respect of that land. By section 3 the effect of a decision of a Court is removed as if the provisions of Section 28 of Act XX of 1957, as amended by Act XXIII of 1969 were in force at all material times. 12. Learned Counsel for the respondent could not point to anything by which the amending Act could be called in question.It was conceded that it was within the competence of Parliament to create the fictions it has created in the original Act XX of 1957 (sic) by the amending 51 of 1957?) and against by the amending Act XXIII of 1969. Learned counsel, however, said that we must take a humane view of the position of a person like the respondent who would lose his all by the acquisition and that too through legislation which make the provisions fictional rather than real. As to the first part we can only say that if the law allows it, the Court must award it and as to the second part we say that this kind of legislation by making obligatory notifications fictional does not accord with our sense of propriety but we cannot say anything against it since Parliament undoubtedly possesses the power to make such fictions. 13. | 1[ds]In view of this amendment it is obvious that now under the scheme of Act XX of 1957, as amended by Act 51 of 1957 and Act XXIII of 1969 a notification under Section 4 (1) ofthe Land Acquisition Act, 1894, is by fiction a notification under Section 4 of Act XX of 1957; an objection under Section5 A ofthe Land Acquisition Act, 1894 is deemed to be an objection under Section 8 of Act XX of 1957. It is also provided that if no objection had been preferred under Section 5A ofthe Land Acquisition Act, 1894 within the period specified in that Act, then it shall be deemed that a notification has been issued under S. 7 of this Act in respect of the land and further that no objection to the acquisition of the land or any rights in or over that land has been preferred under Section 8 of the Act and accordingly the Central Government may at any time make a declaration under Section 9 of Act XX of 1957 in respect of that land. By section 3 the effect of a decision of a Court is removed as if the provisions of Section 28 of Act XX of 1957, as amended by Act XXIII of 1969 were in force at all material times9. LearnedCounsel for the respondent could not point to anything by which the amending Act could be called in question.It was conceded that it was within the competence of Parliament to create the fictions it has created in the original Act XX of 1957 (sic) by the amending 51 of 1957?) and against by the amending Act XXIII of. Learnedcounsel, however, said that we must take a humane view of the position of a person like the respondent who would lose his all by the acquisition and that too through legislation which make the provisions fictional rather than real. As to the first part we can only say that if the law allows it, the Court must award it and as to the second part we say that this kind of legislation by making obligatory notifications fictional does not accord with our sense of propriety but we cannot say anything against it since Parliament undoubtedly possesses the power to make such fictions. | 1 | 2,121 | 407 | ### 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:
Coal Bearing Areas (Acquisition and Development) Amendment Act XXIII of 1969 was enacted. By this amending Act Section 28 (3) was amended by removal of certain words and substitution retrospectively of other words. The amending Act also added a new sub-section, numbered 3A and also enacted Section 3 by which the validation of acquisitions found ineffective by the Courts was made. It is necessary to refer to the amending Act. 7. Sub-section (3) of Section 28, as amended by Act 51 of 1957 (to which Act detailed reference is not necessary), reads as follows:"Any objection preferred under Section 5A of the said Act (Land Acquisition Act, 1894) in respect of any land covered by any notification issued under Section 4 of the said Act (Land Acquisition Act, 1894) shall be deemed to be an objection preferred under Section 8 of this Act to the relevant competent authority and may be disposed of by him as if the objection had been made in relation to a notification issued under Section 7 of this Act in respect of such land; and the Central Government may at any time make a declaration under Section 9 of this Act (Act XX of 1957) in respect of such land or any part thereof." 8. By the amending Act XXIII of 1969 the portions beginning with "in respect of such land" and ending with "or any part thereof" were substituted retrospectively by the words-"in respect of such land or of any rights in or over such land; and the Central Government may at any time make a declaration under Section 9 of this Act in respect of land or any part thereof or any rights in or over such land or part." 9. Simultaneously sub-section (3-A) was introduced and that reads:"(3A) Where in respect of any land covered by any notification issued under Section 4 of the said Act, no objection has been preferred under Section 5A thereof within the period specified in that section, then it shall be deemed that a notification had been issued under Section 7 of this Act in respect of such land or of any rights in or over such land and that no objection to the acquisition of the land or any rights in or over land had been preferred under Section 8 of this Act, and accordingly the Central Government may at any time make a declaration under Section 9 of this Act in respect of the land or any part thereof or any rights in or over such land or part." 10. Finally by section 3 of the Amending Act acquisitions were validated. Section 3 reads:3. Validation of certain acquisitions. Notwithstanding any judgment, decree or order of any court, every acquisition of land or the rights in or over land made by the Central Government in pursuance of the notifications of the Government of India in the late Ministry of Steel, Mines and Fuel (Department of Mines and Fuel) Nos. S. O. 1759 and S. O. 25, dated the 7th August, 1958, and the 22nd December, 1959, respectively, made under Section 9 of the principal Act, shall be and shall be deemed always to have been, as valid as if the provisions of Section 28 thereof as amended by this Act were in force at all material times when such acquisition was made and shall not be called in question in any Court of law on the ground only that before issuing such notifications no notification was issued under Section 7 of the principal Act in relation to the land or rights in or over such land covered by the said notifications Nos. S. O. 1759 and S. O. 25". 11. In view of this amendment it is obvious that now under the scheme of Act XX of 1957, as amended by Act 51 of 1957 and Act XXIII of 1969 a notification under Section 4 (1) of the Land Acquisition Act, 1894, is by fiction a notification under Section 4 of Act XX of 1957; an objection under Section5 A of the Land Acquisition Act, 1894 is deemed to be an objection under Section 8 of Act XX of 1957. It is also provided that if no objection had been preferred under Section 5A of the Land Acquisition Act, 1894 within the period specified in that Act, then it shall be deemed that a notification has been issued under S. 7 of this Act in respect of the land and further that no objection to the acquisition of the land or any rights in or over that land has been preferred under Section 8 of the Act and accordingly the Central Government may at any time make a declaration under Section 9 of Act XX of 1957 in respect of that land. By section 3 the effect of a decision of a Court is removed as if the provisions of Section 28 of Act XX of 1957, as amended by Act XXIII of 1969 were in force at all material times. 12. Learned Counsel for the respondent could not point to anything by which the amending Act could be called in question.It was conceded that it was within the competence of Parliament to create the fictions it has created in the original Act XX of 1957 (sic) by the amending 51 of 1957?) and against by the amending Act XXIII of 1969. Learned counsel, however, said that we must take a humane view of the position of a person like the respondent who would lose his all by the acquisition and that too through legislation which make the provisions fictional rather than real. As to the first part we can only say that if the law allows it, the Court must award it and as to the second part we say that this kind of legislation by making obligatory notifications fictional does not accord with our sense of propriety but we cannot say anything against it since Parliament undoubtedly possesses the power to make such fictions. 13.
### Response:
1
### Explanation:
In view of this amendment it is obvious that now under the scheme of Act XX of 1957, as amended by Act 51 of 1957 and Act XXIII of 1969 a notification under Section 4 (1) ofthe Land Acquisition Act, 1894, is by fiction a notification under Section 4 of Act XX of 1957; an objection under Section5 A ofthe Land Acquisition Act, 1894 is deemed to be an objection under Section 8 of Act XX of 1957. It is also provided that if no objection had been preferred under Section 5A ofthe Land Acquisition Act, 1894 within the period specified in that Act, then it shall be deemed that a notification has been issued under S. 7 of this Act in respect of the land and further that no objection to the acquisition of the land or any rights in or over that land has been preferred under Section 8 of the Act and accordingly the Central Government may at any time make a declaration under Section 9 of Act XX of 1957 in respect of that land. By section 3 the effect of a decision of a Court is removed as if the provisions of Section 28 of Act XX of 1957, as amended by Act XXIII of 1969 were in force at all material times9. LearnedCounsel for the respondent could not point to anything by which the amending Act could be called in question.It was conceded that it was within the competence of Parliament to create the fictions it has created in the original Act XX of 1957 (sic) by the amending 51 of 1957?) and against by the amending Act XXIII of. Learnedcounsel, however, said that we must take a humane view of the position of a person like the respondent who would lose his all by the acquisition and that too through legislation which make the provisions fictional rather than real. As to the first part we can only say that if the law allows it, the Court must award it and as to the second part we say that this kind of legislation by making obligatory notifications fictional does not accord with our sense of propriety but we cannot say anything against it since Parliament undoubtedly possesses the power to make such fictions.
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SHIVAKUMAR Vs. SHARANABASAPPA | under Rule 23 or Rule 23A, the whole case goes back for decision to the Trial Court except on the point on which the Appellate Court has returned concluded finding, if any. While making a remand under Rule 23 or Rule 23A, the judgment and decree of the Trial Court is required to be set aside but it is not necessary to set aside the impugned judgment and decree when taking recourse to Rule 25 of Order XLI.) 25.3. A comprehension of the scheme of the provisions for remand as contained in Rules 23 and 23A of Order XLI is not complete without reference to the provision contained in Rule 24 of Order XLI that enables the Appellate Court to dispose of a case finally without a remand if the evidence on record is sufficient; notwithstanding that the Appellate Court proceeds on a ground entirely different from that on which the Trial Court had proceeded. 25.4. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case. 25.4.1. The decision cited by the learned Counsel for the appellants in the case of Mohan Kumar (supra) is an apt illustration as to when the Appellate Court ought to exercise the power of remand. In the said case, the appellant and his mother had filed the civil suit against the Government and local body seeking declaration of title, perpetual injunction and for recovery of possession in respect of the land in question. The Trial Court partly decreed the suit while holding that the plaintiffs were the owners of the land in dispute on which trespass was committed by the respondents and they were entitled to get the encroachment removed; and it was also held that the Government should acquire the land and pay the market value of the land to the appellant. Such part of the decree of the Trial Court was not challenged by the defendants but as against the part of the decision of the Trial Court which resulted in rejection of the claim of the appellant for allotment of an alternative land, the appellant preferred an appeal before the High Court. The High Court not only dismissed the appeal so filed by the appellant but proceeded to dismiss the entire suit with the finding that the plaintiff-appellant had failed to prove his ownership over the suit land inasmuch as he did not examine the vendor of his sale deed. In the given circumstances, this Court observed that when the High Court held that the appellant was not able to prove his title to the suit land due to non- examination of his vendor, the proper course for the High Court was to remand the case to the Trial Court by affording an opportunity to the appellant to prove his title by adducing proper evidence in addition to what had already been adduced. Obviously, this Court found that for the conclusion reached by the High Court, a case for re-trial was made out particularly when the Trial Court had otherwise held that the appellant was owner of the land in dispute and was entitled to get the encroachment removed as also to get the market value of the land. Such cases where re- trial is considered necessary because of any particular reason and more particularly for the reason that adequate opportunity of leading sufficient evidence to a party is requisite, stand at entirely different footings than the cases where evidence has already been adduced and decision is to be rendered on appreciation of evidence. It also remains trite that an order of remand is not to be passed merely for the purpose of allowing a party to fill- up the lacuna in its case. 25.5. It gets perforce reiterated that the occasion for remand would arise only when the factual findings of Trial Court are reversed and a re-trial is considered necessary by the Appellate Court. 25.6. The present case had clearly been the one where the parties had adduced all their evidence, whatever they wished to; and it had not been the case of the plaintiff-appellants that they were denied any opportunity to produce any particular evidence or if the trial was vitiated because of any alike reason. As noticed, there had been several suspicious circumstances surrounding the Will in question, some of which were noticed by the Trial Court but were brushed aside by it on untenable reasons. The High Court has meticulously examined the same evidence and the same circumstances and has come to a different conclusion that appears to be sound and plausible, and does not appear suffering from any infirmity. There was no reason or occasion for the High Court to consider remanding the case to the Trial Court. The contention in this regard is required to be, and is, rejected. CONCLUSION | 1[ds]11. For what has been noticed hereinabove, the relevant principles governing the adjudicatory process concerning proof of a Will could be broadly summarised as follows:–1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter6. A circumstance is suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. As put by this Court, the suspicious features must be real, germane and valid and not merely the fantasy of the doubting mind7. As to whether any particular feature or a set of features qualify as suspicious would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the WillSUSPICIOUS CIRCUMSTANCES/FEATURES CONCERNING THE WILL IN QUESTION12. Having considered the present matter in its totality while keeping the principles aforesaid in view, we have not an iota of doubt that the High Court has examined the matter in its correct perspective and there had been substantial and material reasons for which, the decision of the Trial Court could not have been upheld; and the High Court has rightly reversed the same13. In summation of the lengthy discussion of the Trial Court, it could be noticed that some of the major factors which weighed with the Trial Court in rejecting the objections of the contesting defendants against the Will in question had been: (i) that the testator Sangappa was not having warmth of relations with defendant No. 1 and his family and was not willing to give anything to them; (ii) that even in the earlier Will of the year 1974, Sangappa had not bequeathed any property to the contesting defendants; (iii) that the plaintiffs, the grand–nephews of testators wife, were residing with the testator; (iv) that the father of the plaintiffs was associated with the testator in his business and other dealings; (v) that the attesting witnesses were only the customers of the testator and were naturally chosen as independent persons to stand as witnesses to the Will; (vi) that the Will in question was in possession of PW-8 and was opened by him in the presence of Swamiji; and (vii) that PW-8 had neither any animosity with the defendants nor was gaining anything from the Will14. The High Court, on the other hand, felt dissatisfied with the document itself and found no explanation on record about numerous unnatural circumstances dilated upon and discussed by it in some of the passages extracted hereinbefore. Having examined the material placed on record, in our view, the observations and findings of the High Court remain unexceptionable15.3 Therefore, in the present case, three features of the document Ex. P.4, carrying unusual characteristics of their own, manifest themselves on the face of the record and nothing but a bare look at the document is sufficient to notice them. The aforesaid three unnatural and unusual features of the document in question, where different sheets of paper have been used; where placement of the signatures of the testator at least at two places is beyond normal distance from the last typed matter; and where in making of three signatures, at least two different pens were used, make it clear that a deeper probe is called for to find as to whether this document could at all be accepted as the last Will of the testator15.4. When the exploration is pushed slightly further, another major feature comes to the fore, which has been noticed by the High Court but which escaped the attention of the Trial Court altogether. The document in question is said to be a Will running in 5 pages which is typed (in kannada script) on 3 sheets of papers with the first and second sheets carrying the typewritten contents on both sides; page number 2 being typed on the backside of page number 1 and page number 4 being typed on the backside of page number 3. The significant feature is that page number 2 and page number 4 of this document Ex. P.4 do not carry any signature at all!15.4.1. It is apparent on the face of the record that even when the front facing pages i.e., page numbers 1, 3 and 5 carry the signatures of the testator, the backside pages i.e., page number 2 and page number 4 are not signed at all and have gone unsigned. When this material aspect is added to the above-referred three unusual features, the probative value of this document Ex. P.4 is shaken to the core and it becomes a serious question as to whether this document could be considered to be a Will that was got typed and signed by the testator in the presence of the alleged attesting witnesses15.4.2. In relation to this aspect of want of signatures of the testator on page number 2 and page number 4, we may also observe that as per the requirement of clause (b) of Section 63 of the Succession Act, the signature or mark of the testator is to be so placed that it shall appear that by such signature or mark, the intention was to give effect to the writing as a Will. Of course, when no specific form of making a Will is provided, in a given case, depending on the relevant facts and circumstances, a document drawn on several sheets but carrying signature only at the end may also be accepted as a genuine Will where the document was authenticated by only one signature. However, the scenario like the present one, where the executant had purportedly signed 3 out 5 typewritten pages while omitting to sign the other 2, definitely stands at contradistinction to the dealing of any normal person in normal way. When the signatures of the testator are indeed available on page numbers 1, 3 and 5, it is difficult to find any plausible explanation for his omission to sign at page number 2 and page number 4 of the same document. The only explanation could be that the testator chose to sign the front face of each paper and did not consider it necessary to sign on the backside of the paper. However, accepting such a frail explanation, and that too in the face of other unusual features (as noticed hereinbefore), would tantamount to thrusting the probative value into the document while ignoring everything that is incongruous to, and incompatible with, the normal course of happenings15.4.3. The indisputable fact that page number 2 and page number 4 of the document in question (EX. P.4) do not carry the signatures of the testator whereas other pages do carry his signatures, in our view, places the document in conflict with, or at least non-compliant with, the requirement of clause (b) of Section 63 of the Succession Act. The document in question could be rejected outright for this reason alone. However, having regard to the circumstances of the case, it would be appropriate to deal with other factual aspects concerning the document in question before reaching to the final conclusion15.5. The discussion thus far makes it clear that at least four unusual features of the document in question are evident on the face of the record. To recapitulate, the disturbing unusual features of the document in question are that: (i) it is typewritten on 3 different sheets of paper; (ii) the placement of signatures of the testator is not of uniformity and excessive space is seen between the typewritten contents and the signatures on page number 1 and page number 5; (iii) different pens have been used for signatures on different pages with ink pen having been used for first and third signatures (on page number 1 and page number 5) and ballpoint pen having been used for the second signature (on page number 3); and (iv) all the typewritten pages do not carry the signatures of the testator, with there being no signature on page number 2 and page number 4. It does not require any great deal of elaboration that in the ordinary, normal and usual course, such a typewritten document is expected to be on the sheets of paper drawn from the same stack; there would be reasonable uniformity in placement of the signatures running through the document and every signature would be placed alongside or at a reasonable distance from the contents; a single pen or instrument would be used for signing at all places; and, ordinarily, a maker of the Will would not leave such ambiguity in expression of his intention as would arise by his signing 3 pages and not signing 2 other pages of the same document. In fact, in the normal and ordinary course of dealing, the maker of a Will is least expected to leave any page of the document unsigned. Although existence of some such unusual features (as noticed above) cannot be ruled out during the course of typing and signing of the document but when all such unusual features combine together, the document becomes too vulnerable and cannot be readily accepted as a genuine document16. While proceeding further, we may usefully reiterate the principles relating to the examination of a document propounded as Will that the document is not approached with doubts but is examined cautiously and with circumspection. For what has been noticed hereinabove, the document in question carries several such features of unusualness which travel into the realm of abnormalities. The matter does not rest with such abnormalities only. These abnormal features get confounded with other unusual features available in the contents of this document. Indisputably, several blank spaces are found in relation to the particulars of the properties and even some of the properties are not correctly described. Yet further, the dates mentioned in the document with reference to Hindi Calendar and English Calendar do not match. Yet another curious feature is the recital in the document of a past event (about vacating of the shop by the tenant in the year 1990) in the manner that such event shall happen in future. Therefore, the abnormalities relating to paper, pen and signature get magnified with blank spaces in the document as also with incorrect and inexplicable recitals17. The problems relating to the probative value of the document Ex. P.4 do not end with the aforementioned abnormal features and curious factors. A close examination of this document takes us from abnormalities to mysteries too. In the opening passage of this document, the recital is to the effect that the testator was making the Will because so many accidents do happen. The fact remains that the testator and his wife both died in the car accident on 20.05.1994 but, it would require travelling into an entirely mystical region to accept that while making the Will on 20.05.1991, the testator had the premonition that he would perish in a vehicular accident18. As noticed, even when a fishing enquiry with digging of the faults and lacuna is not to be resorted to while examining a Will but, and at the same time, the real and valid suspicions which arise because of anything standing beyond normal happening or conduct cannot be ignored either. Ignoring or brushing aside all the features noticed in relation to the document in question would require taking up an individual feature and ignoring it as being trivial or minor and then, proceeding with the belief that it had only been a matter of chance that all the abnormalities somehow chose to conglomerate into this one document. Such an approach would, obviously, be detached from realities and cannot be adopted. It needs hardly any emphasis that examination of a document propounded as Will has to be on the norms of reality as also normalcy; and the overall effect of all the features and circumstances is required to be examined19. When all the aforesaid abnormal, curious and rather mysterious circumstances are put together, the inescapable conclusion is that the document in question cannot be accepted as the last Will of the testator. The unexplained, unusual and abnormal features pertaining to the document only lead to the logical deduction that the document in question was prepared after the demise of the testator with use of blank signed papers that came in possession of the propounders and their associates. The High Court has stated such deduction after thorough examination of the material on record and, in our view, rightly so. It is noticed that all the features and factors indicated hereinabove are very much available on the face of the record. However, the Trial Court, even while dealing with several contentions in excessive details, either failed to notice some of the features indicated above or simply brushed aside the particular feature carrying abnormality with the observations to the effect that the propounders were not to be expected to remove the suspicions concerning the document when they had no role in its execution. The Trial Court having, obviously, misdirected itself on several of the key and pivotal factors, its decision could not have been approvedThe submissions so made on behalf of the appellants cannot be accepted for the reason that mere proof of the document in accordance with the requirements of Section 68 of the Evidence Act is not final and conclusive for acceptance of a document as a Will. When suspicious circumstances exist and the suspicions have not been removed, the document in question cannot be accepted as a Will21. Even the aspect suggested on behalf of the plaintiffs and their witnesses that the document in question (Ex. P.4) was drawn up as a Will and was placed in a sealed cover with the handwritten draft (Ex. P.3) has its own shortcomings and the share of abnormalities. It remains indisputable that the said draft (Ex. P.3) had remained incomplete. It may be assumed that the same was being drawn up by the testator in his own handwriting for finally making his last Will after he had revoked the earlier Will but, it had remained incomplete draft only. If the testator himself had got his Will typed and then, took care to have it executed in the presence of 4 attesting witnesses; and if he intended such executed document to operate as his Will; and also had the intention that his Will be kept in a sealed cover to be opened before Swamiji, in the ordinary course of dealings, it was least expected of him to put the said incomplete draft also in the envelope because placing of such incomplete draft could have only created confusion in regard to the actual Will, if there were any. Taking an overall view of the matter, the preponderance of probability is only to the effect that the entire story about execution of Will by the deceased Sangappa has been cooked up with use of readily available signed papers (though of different sheets of paper and with signatures with different instruments) and, in order to suggest some authenticity, the story of sealed envelope and leaving of the same with PW-8 was sought to be inserted. This feature only operates against the plaintiffs where it carries another unexplained unusualness22. The Trial Court had largely been swayed by the fact that the deceased Sangappa was not inclined to give any property to the defendant No. 1 and his family as had been the case of the earlier Will executed by him in the year 1974. Admittedly, the said Will of the year 1974 was cancelled by Shri Sangappa on 26.09.1990. He perished in the vehicular accident on 20.05.1991. Whether he intended to bequeath any property to the defendants or not is hardly of any bearing in relation to the suspicious circumstances noticed above23. Having dilated on various major features which, individually and cumulatively, lead only to the conclusion that the document in question cannot be accepted to be the last Will of late Shri Sangappa, it does not appear necessary to discuss several other shortcomings in the case of the plaintiffs, including various other factors like that the plaintiffs never took steps to get the statement of the said Swamiji recorded, who was otherwise referred to by all the material witnesses as being the person before whom the document was allegedly opened24. In our view, the document in question falls flat at the very first question indicated in the case of H. Venkatachala Iyenger (supra) that is, as to whether the testator signed the Will in question. The answer to this question is only in the negative. This is apart from the fact that the document in question, propounded as a Will, is non-compliant with the requirements of clause (b) of Section 63 of the Succession Act24.1. In the ultimate analysis, we are satisfied that the High Court was right in reversing the decision of the Trial Court and in holding that the contested Will was not a genuine document25. Taking up the other point for determination, the submission of learned counsel for the appellants that the High Court ought to have considered remanding the case by taking recourse to the provision contained in Order XLI Rule 23A CPC, in our view, remains totally bereft of substance; this submission has only been noted to be rejected25.4. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case25.4.1. The decision cited by the learned Counsel for the appellants in the case of Mohan Kumar (supra) is an apt illustration as to when the Appellate Court ought to exercise the power of remand25.6. The present case had clearly been the one where the parties had adduced all their evidence, whatever they wished to; and it had not been the case of the plaintiff-appellants that they were denied any opportunity to produce any particular evidence or if the trial was vitiated because of any alike reason. As noticed, there had been several suspicious circumstances surrounding the Will in question, some of which were noticed by the Trial Court but were brushed aside by it on untenable reasons. The High Court has meticulously examined the same evidence and the same circumstances and has come to a different conclusion that appears to be sound and plausible, and does not appear suffering from any infirmity. There was no reason or occasion for the High Court to consider remanding the case to the Trial Court. The contention in this regard is required to be, and is, rejected. | 1 | 20,892 | 4,203 | ### Instruction:
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under Rule 23 or Rule 23A, the whole case goes back for decision to the Trial Court except on the point on which the Appellate Court has returned concluded finding, if any. While making a remand under Rule 23 or Rule 23A, the judgment and decree of the Trial Court is required to be set aside but it is not necessary to set aside the impugned judgment and decree when taking recourse to Rule 25 of Order XLI.) 25.3. A comprehension of the scheme of the provisions for remand as contained in Rules 23 and 23A of Order XLI is not complete without reference to the provision contained in Rule 24 of Order XLI that enables the Appellate Court to dispose of a case finally without a remand if the evidence on record is sufficient; notwithstanding that the Appellate Court proceeds on a ground entirely different from that on which the Trial Court had proceeded. 25.4. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case. 25.4.1. The decision cited by the learned Counsel for the appellants in the case of Mohan Kumar (supra) is an apt illustration as to when the Appellate Court ought to exercise the power of remand. In the said case, the appellant and his mother had filed the civil suit against the Government and local body seeking declaration of title, perpetual injunction and for recovery of possession in respect of the land in question. The Trial Court partly decreed the suit while holding that the plaintiffs were the owners of the land in dispute on which trespass was committed by the respondents and they were entitled to get the encroachment removed; and it was also held that the Government should acquire the land and pay the market value of the land to the appellant. Such part of the decree of the Trial Court was not challenged by the defendants but as against the part of the decision of the Trial Court which resulted in rejection of the claim of the appellant for allotment of an alternative land, the appellant preferred an appeal before the High Court. The High Court not only dismissed the appeal so filed by the appellant but proceeded to dismiss the entire suit with the finding that the plaintiff-appellant had failed to prove his ownership over the suit land inasmuch as he did not examine the vendor of his sale deed. In the given circumstances, this Court observed that when the High Court held that the appellant was not able to prove his title to the suit land due to non- examination of his vendor, the proper course for the High Court was to remand the case to the Trial Court by affording an opportunity to the appellant to prove his title by adducing proper evidence in addition to what had already been adduced. Obviously, this Court found that for the conclusion reached by the High Court, a case for re-trial was made out particularly when the Trial Court had otherwise held that the appellant was owner of the land in dispute and was entitled to get the encroachment removed as also to get the market value of the land. Such cases where re- trial is considered necessary because of any particular reason and more particularly for the reason that adequate opportunity of leading sufficient evidence to a party is requisite, stand at entirely different footings than the cases where evidence has already been adduced and decision is to be rendered on appreciation of evidence. It also remains trite that an order of remand is not to be passed merely for the purpose of allowing a party to fill- up the lacuna in its case. 25.5. It gets perforce reiterated that the occasion for remand would arise only when the factual findings of Trial Court are reversed and a re-trial is considered necessary by the Appellate Court. 25.6. The present case had clearly been the one where the parties had adduced all their evidence, whatever they wished to; and it had not been the case of the plaintiff-appellants that they were denied any opportunity to produce any particular evidence or if the trial was vitiated because of any alike reason. As noticed, there had been several suspicious circumstances surrounding the Will in question, some of which were noticed by the Trial Court but were brushed aside by it on untenable reasons. The High Court has meticulously examined the same evidence and the same circumstances and has come to a different conclusion that appears to be sound and plausible, and does not appear suffering from any infirmity. There was no reason or occasion for the High Court to consider remanding the case to the Trial Court. The contention in this regard is required to be, and is, rejected. CONCLUSION
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was placed in a sealed cover with the handwritten draft (Ex. P.3) has its own shortcomings and the share of abnormalities. It remains indisputable that the said draft (Ex. P.3) had remained incomplete. It may be assumed that the same was being drawn up by the testator in his own handwriting for finally making his last Will after he had revoked the earlier Will but, it had remained incomplete draft only. If the testator himself had got his Will typed and then, took care to have it executed in the presence of 4 attesting witnesses; and if he intended such executed document to operate as his Will; and also had the intention that his Will be kept in a sealed cover to be opened before Swamiji, in the ordinary course of dealings, it was least expected of him to put the said incomplete draft also in the envelope because placing of such incomplete draft could have only created confusion in regard to the actual Will, if there were any. Taking an overall view of the matter, the preponderance of probability is only to the effect that the entire story about execution of Will by the deceased Sangappa has been cooked up with use of readily available signed papers (though of different sheets of paper and with signatures with different instruments) and, in order to suggest some authenticity, the story of sealed envelope and leaving of the same with PW-8 was sought to be inserted. This feature only operates against the plaintiffs where it carries another unexplained unusualness22. The Trial Court had largely been swayed by the fact that the deceased Sangappa was not inclined to give any property to the defendant No. 1 and his family as had been the case of the earlier Will executed by him in the year 1974. Admittedly, the said Will of the year 1974 was cancelled by Shri Sangappa on 26.09.1990. He perished in the vehicular accident on 20.05.1991. Whether he intended to bequeath any property to the defendants or not is hardly of any bearing in relation to the suspicious circumstances noticed above23. Having dilated on various major features which, individually and cumulatively, lead only to the conclusion that the document in question cannot be accepted to be the last Will of late Shri Sangappa, it does not appear necessary to discuss several other shortcomings in the case of the plaintiffs, including various other factors like that the plaintiffs never took steps to get the statement of the said Swamiji recorded, who was otherwise referred to by all the material witnesses as being the person before whom the document was allegedly opened24. In our view, the document in question falls flat at the very first question indicated in the case of H. Venkatachala Iyenger (supra) that is, as to whether the testator signed the Will in question. The answer to this question is only in the negative. This is apart from the fact that the document in question, propounded as a Will, is non-compliant with the requirements of clause (b) of Section 63 of the Succession Act24.1. In the ultimate analysis, we are satisfied that the High Court was right in reversing the decision of the Trial Court and in holding that the contested Will was not a genuine document25. Taking up the other point for determination, the submission of learned counsel for the appellants that the High Court ought to have considered remanding the case by taking recourse to the provision contained in Order XLI Rule 23A CPC, in our view, remains totally bereft of substance; this submission has only been noted to be rejected25.4. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case25.4.1. The decision cited by the learned Counsel for the appellants in the case of Mohan Kumar (supra) is an apt illustration as to when the Appellate Court ought to exercise the power of remand25.6. The present case had clearly been the one where the parties had adduced all their evidence, whatever they wished to; and it had not been the case of the plaintiff-appellants that they were denied any opportunity to produce any particular evidence or if the trial was vitiated because of any alike reason. As noticed, there had been several suspicious circumstances surrounding the Will in question, some of which were noticed by the Trial Court but were brushed aside by it on untenable reasons. The High Court has meticulously examined the same evidence and the same circumstances and has come to a different conclusion that appears to be sound and plausible, and does not appear suffering from any infirmity. There was no reason or occasion for the High Court to consider remanding the case to the Trial Court. The contention in this regard is required to be, and is, rejected.
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Ravi Yashwant Bhoir Vs. The Collector, District Raigad | of the Council within a period of two months from the date on which the last preceding ordinary meeting was held. The statutory provisions further provided that in case the President fails to call the ordinary meeting within the said stipulated period, the Chief Officer may report such failure to the Collector and the Collector can call the ordinary meeting of the Council following the procedure prescribed therein. The President can also call the meeting on the request of the members not less than one-fourth of the total number of councils. Therefore, the cogent reading of all the provisions makes it clear that in case the President fails to call the meeting, there are other modes of calling the meeting and in such an eventuality where reasonable explanation has been furnished by the appellant to the show cause notice on this count, the competent authority could not have passed such a harsh order. 47. So far as the other charges regarding laying down the pipelines at a much higher rate are concerned, it has been a positive case of the appellant that as earlier contractor had abandoned the work in between and there was a scarcity of water in the city, the Chief Officer, the Junior Engineer considered the technical aspect and then recommendations were forwarded under the signatures of the appellant, the Chief Officer and Junior Engineer to the council, which ultimately passed the resolution accepting the said tenders. In such a fact-situation, it was a collective consensus decision of the house after due deliberations. Admittedly, it was not even the ratification of contract awarded by the appellant himself. Thus, even by any stretch of imagination it cannot be held to be an individual decision of the appellant and the competent authority failed to appreciate that the tenders were accepted by the Council itself and not by the appellant alone. Therefore, he could not be held responsible for acceptance of tenders. We have gone through the counter affidavit filed by respondent No.5, complainant before this court and he has not stated anywhere that the tenders were not accepted by the council, rather allegations have been made that the tenders had been accepted at a higher rate so that the contractor could get the financial gain. Similarly, technical issue has been raised for not calling the meeting, committing serious irregularities sufficiently warranting dis-qualification of the appellant on his omission to call the meeting, but it is not his case that he did it intentionally. The counter affidavit filed by the State does not reveal anything in relation to the issues involved herein and it appears that the deponent/officer has merely completed the formalities without any purpose. 48. To conclude, we are of the considered opinion and that too after appreciation of the entire evidence on record that the first charge proved against the appellant for not calling the meeting of Council, did not warrant the order of removal and the explanation furnished by appellant could have been accepted. Other charges could not be proved against the appellant, in view of the fact, that the tenders at a higher rate were accepted by the Council itself and the appellant could not be held exclusively responsible for it. The Respondent no. 5, being a political rival, could not have been entertained as a party to the lis. The charge of not calling the meeting of the Council had been admitted by the appellant himself, thus, no further evidence was required, for the reason, that the admission is the best evidence. The competent authority could have considered his explanation alone and proceeded to take a final decision. So far as the other charges are concerned, as has been observed hereinabove, it had been a consensus collective decision of the Council to accept the tender at higher rate and the appellant could not have been held guilty of the said charges. Thus, the instant case has been a crystal clear cut case of legal malice and therefore, the impugned orders are liable to be quashed. The duly elected member/chairman of the council could not have been removed in such a casual and cavalier manner without giving strict adherence to the safeguards provided under the statute which had to be scrupulously followed. 49. The appellant has raised a question of fact before the High Court as well as before this Court submitting that at the time of hearing before the Honble Chief Minister, respondent No.5 has raised new grounds and the appellant raised serious objections as he had no opportunity to meet the same. Thus, in order to give the appellant an opportunity to rebut the same the competent authority had adjourned the case and directed the Secretary to fix a date so that the appellant may meet those new objections/grounds. However, the order impugned removing the appellant from the post and declaring him further disqualified for a period of six years had been passed. It is not evident from the order impugned as what could be those new grounds which had not been disclosed to the appellant. Thus, to ascertain as to whether in order to give an opportunity to the appellant to meet the alleged new grounds, the competent authority had adjourned the case, this Court while reserving the judgment vide order dated 13.2.2012 asked the learned Standing Counsel for the State Shri Mike Prakash Desai to produce the original record before this Court within a period of two weeks. For the reasons best known to the State Authorities neither the record has been produced before us, nor any application has been filed to extend the time to produce the same.In fact, this Court has been deprived of seeing the original record and to examine the grievance of the appellant. We express our grave concern and shock the way the State Authorities has treated the highest court of the land. In such a fact-situation, the court has no option except to draw the adverse inference against the State.50. In view of the above, | 1[ds]we are of the considered opinion and that too after appreciation of the entire evidence on record that the first charge proved against the appellant for not calling the meeting of Council, did not warrant the order of removal and the explanation furnished by appellant could have been accepted. Other charges could not be proved against the appellant, in view of the fact, that the tenders at a higher rate were accepted by the Council itself and the appellant could not be held exclusively responsible for it. The Respondent no. 5, being a political rival, could not have been entertained as a party to the lis. The charge of not calling the meeting of the Council had been admitted by the appellant himself, thus, no further evidence was required, for the reason, that the admission is the best evidence. The competent authority could have considered his explanation alone and proceeded to take a final decision. So far as the other charges are concerned, as has been observed hereinabove, it had been a consensus collective decision of the Council to accept the tender at higher rate and the appellant could not have been held guilty of the said charges. Thus, the instant case has been a crystal clear cut case of legal malice and therefore, the impugned orders are liable to be quashed. The duly elected member/chairman of the council could not have been removed in such a casual and cavalier manner without giving strict adherence to the safeguards provided under the statute which had to be scrupulouslyorder impugned removing the appellant from the post and declaring him further disqualified for a period of six years had been passed. It is not evident from the order impugned as what could be those new grounds which had not been disclosed to the appellant. Thus, to ascertain as to whether in order to give an opportunity to the appellant to meet the alleged new grounds, the competent authority had adjourned the case, this Court while reserving the judgment vide order dated 13.2.2012 asked the learned Standing Counsel for the State Shri Mike Prakash Desai to produce the original record before this Court within a period of two weeks. For the reasons best known to the State Authorities neither the record has been produced before us, nor any application has been filed to extend the time to produce the same.In fact, this Court has been deprived of seeing the original record and to examine the grievance of the appellant. We express our grave concern and shock the way the State Authorities has treated the highest court of the land. In such a fact-situation, the court has no option except to draw the adverse inference against the State. | 1 | 10,693 | 490 | ### 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:
of the Council within a period of two months from the date on which the last preceding ordinary meeting was held. The statutory provisions further provided that in case the President fails to call the ordinary meeting within the said stipulated period, the Chief Officer may report such failure to the Collector and the Collector can call the ordinary meeting of the Council following the procedure prescribed therein. The President can also call the meeting on the request of the members not less than one-fourth of the total number of councils. Therefore, the cogent reading of all the provisions makes it clear that in case the President fails to call the meeting, there are other modes of calling the meeting and in such an eventuality where reasonable explanation has been furnished by the appellant to the show cause notice on this count, the competent authority could not have passed such a harsh order. 47. So far as the other charges regarding laying down the pipelines at a much higher rate are concerned, it has been a positive case of the appellant that as earlier contractor had abandoned the work in between and there was a scarcity of water in the city, the Chief Officer, the Junior Engineer considered the technical aspect and then recommendations were forwarded under the signatures of the appellant, the Chief Officer and Junior Engineer to the council, which ultimately passed the resolution accepting the said tenders. In such a fact-situation, it was a collective consensus decision of the house after due deliberations. Admittedly, it was not even the ratification of contract awarded by the appellant himself. Thus, even by any stretch of imagination it cannot be held to be an individual decision of the appellant and the competent authority failed to appreciate that the tenders were accepted by the Council itself and not by the appellant alone. Therefore, he could not be held responsible for acceptance of tenders. We have gone through the counter affidavit filed by respondent No.5, complainant before this court and he has not stated anywhere that the tenders were not accepted by the council, rather allegations have been made that the tenders had been accepted at a higher rate so that the contractor could get the financial gain. Similarly, technical issue has been raised for not calling the meeting, committing serious irregularities sufficiently warranting dis-qualification of the appellant on his omission to call the meeting, but it is not his case that he did it intentionally. The counter affidavit filed by the State does not reveal anything in relation to the issues involved herein and it appears that the deponent/officer has merely completed the formalities without any purpose. 48. To conclude, we are of the considered opinion and that too after appreciation of the entire evidence on record that the first charge proved against the appellant for not calling the meeting of Council, did not warrant the order of removal and the explanation furnished by appellant could have been accepted. Other charges could not be proved against the appellant, in view of the fact, that the tenders at a higher rate were accepted by the Council itself and the appellant could not be held exclusively responsible for it. The Respondent no. 5, being a political rival, could not have been entertained as a party to the lis. The charge of not calling the meeting of the Council had been admitted by the appellant himself, thus, no further evidence was required, for the reason, that the admission is the best evidence. The competent authority could have considered his explanation alone and proceeded to take a final decision. So far as the other charges are concerned, as has been observed hereinabove, it had been a consensus collective decision of the Council to accept the tender at higher rate and the appellant could not have been held guilty of the said charges. Thus, the instant case has been a crystal clear cut case of legal malice and therefore, the impugned orders are liable to be quashed. The duly elected member/chairman of the council could not have been removed in such a casual and cavalier manner without giving strict adherence to the safeguards provided under the statute which had to be scrupulously followed. 49. The appellant has raised a question of fact before the High Court as well as before this Court submitting that at the time of hearing before the Honble Chief Minister, respondent No.5 has raised new grounds and the appellant raised serious objections as he had no opportunity to meet the same. Thus, in order to give the appellant an opportunity to rebut the same the competent authority had adjourned the case and directed the Secretary to fix a date so that the appellant may meet those new objections/grounds. However, the order impugned removing the appellant from the post and declaring him further disqualified for a period of six years had been passed. It is not evident from the order impugned as what could be those new grounds which had not been disclosed to the appellant. Thus, to ascertain as to whether in order to give an opportunity to the appellant to meet the alleged new grounds, the competent authority had adjourned the case, this Court while reserving the judgment vide order dated 13.2.2012 asked the learned Standing Counsel for the State Shri Mike Prakash Desai to produce the original record before this Court within a period of two weeks. For the reasons best known to the State Authorities neither the record has been produced before us, nor any application has been filed to extend the time to produce the same.In fact, this Court has been deprived of seeing the original record and to examine the grievance of the appellant. We express our grave concern and shock the way the State Authorities has treated the highest court of the land. In such a fact-situation, the court has no option except to draw the adverse inference against the State.50. In view of the above,
### Response:
1
### Explanation:
we are of the considered opinion and that too after appreciation of the entire evidence on record that the first charge proved against the appellant for not calling the meeting of Council, did not warrant the order of removal and the explanation furnished by appellant could have been accepted. Other charges could not be proved against the appellant, in view of the fact, that the tenders at a higher rate were accepted by the Council itself and the appellant could not be held exclusively responsible for it. The Respondent no. 5, being a political rival, could not have been entertained as a party to the lis. The charge of not calling the meeting of the Council had been admitted by the appellant himself, thus, no further evidence was required, for the reason, that the admission is the best evidence. The competent authority could have considered his explanation alone and proceeded to take a final decision. So far as the other charges are concerned, as has been observed hereinabove, it had been a consensus collective decision of the Council to accept the tender at higher rate and the appellant could not have been held guilty of the said charges. Thus, the instant case has been a crystal clear cut case of legal malice and therefore, the impugned orders are liable to be quashed. The duly elected member/chairman of the council could not have been removed in such a casual and cavalier manner without giving strict adherence to the safeguards provided under the statute which had to be scrupulouslyorder impugned removing the appellant from the post and declaring him further disqualified for a period of six years had been passed. It is not evident from the order impugned as what could be those new grounds which had not been disclosed to the appellant. Thus, to ascertain as to whether in order to give an opportunity to the appellant to meet the alleged new grounds, the competent authority had adjourned the case, this Court while reserving the judgment vide order dated 13.2.2012 asked the learned Standing Counsel for the State Shri Mike Prakash Desai to produce the original record before this Court within a period of two weeks. For the reasons best known to the State Authorities neither the record has been produced before us, nor any application has been filed to extend the time to produce the same.In fact, this Court has been deprived of seeing the original record and to examine the grievance of the appellant. We express our grave concern and shock the way the State Authorities has treated the highest court of the land. In such a fact-situation, the court has no option except to draw the adverse inference against the State.
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Commissioner of Central Excise Service Tax Vs. Ultra Tech Cement Ltd | the following reasons:10. In the first instance, it needs to be kept in mind that Board’s Circular dated August 23, 2007 was issued in clarification of the definition of ‘input service’ as existed on that date i.e. it related to unamended definition. Relevant portion of the said circular is as under:“ISSUE: Up to what stage a manufacturer/consignor can take credit on the service tax paid on goods transport by road?COMMENTS: This issue has been examined in great detail by the CESTAT in the case of M/s Gujarat Ambuja Cements Ltd. vs CCE, Ludhiana [2007 (6) STR 249 Tri-D]. In this case, CESTAT has made the following observations:-“the post sale transport of manufactured goods is not an input for the manufacturer/consignor. The two clauses in the definition of ‘input services’ take care to circumscribe input credit by stating that service used in relation to the clearance from the place of removal and service used for outward transportation upto the place of removal are to be treated as input service. The first clause does not mention transport service in particular. The second clause restricts transport service credit upto the place of removal. When these two clauses are read together, it becomes clear that transport service credit cannot go beyond transport upto the place of removal. The two clauses, the one dealing with general provision and other dealing with a specific item, are not to be read disjunctively so as to bring about conflict to defeat the laws’ scheme. The purpose of interpretation is to find harmony and reconciliation among the various provisions”.Similarly, in the case of M/s Ultratech Cements Ltd vs CCE Bhavnagar 2007-TOIL-429-CESTAT-AHM, it was held that after the final products are cleared from the place of removal, there will be no scope of subsequent use of service to be treated as input. The above observations and views explain the scope of the relevant provisions clearly, correctly and in accordance with the legal provisions. In conclusion, a manufacturer / consignor can take credit on the service tax paid on outward transport of goods up to the place of removal and not beyond that.8.2 In this connection, the phrase ‘place of removal’ needs determination taking into account the facts of an individual case and the applicable provisions. The phrase ‘place of removal’ has not been defined in CENVAT Credit Rules. In terms of sub-rule (t) of rule 2 of the said rules, if any words or expressions are used in the CENVAT Credit Rules, 2004 and are not defined therein but are defined in the Central Excise Act, 1944 or the Finance Act, 1994, they shall have the same meaning for the CENVAT Credit Rules as assigned to them in those Acts. The phrase ‘place of removal’ is defined under section 4 of the Central Excise Act, 1944. It states that,-“place of removal” means-(i) a factory or any other place or premises of production or manufacture of the excisable goods ;(ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be stored without payment of duty ;(iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory;from where such goods are removed.”It is, therefore, clear that for a manufacturer /consignor, the eligibility to avail credit of the service tax paid on the transportation during removal of excisable goods would depend upon the place of removal as per the definition. In case of a factory gate sale, sale from a non-duty paid warehouse, or from a duty paid depot (from where the excisable goods are sold, after their clearance from the factory), the determination of the ‘place of removal’ does not pose much problem. However, there may be situations where the manufacturer /consignor may claim that the sale has taken place at the destination point because in terms of the sale contract /agreement (i) the ownership of goods and the property in the goods remained with the seller of the goods till the delivery of the goods in acceptable condition to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to the goods during transit to the destination; and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the service tax paid on the transportation up to such place of sale would be admissible if it can be established by the claimant of such credit that the sale and the transfer of property in goods (in terms of the definition as under section 2 of the Central Excise Act, 1944 as also in terms of the provisions under the Sale of Goods Act, 1930) occurred at the said place.”11. As can be seen from the reading of the aforesaid portion of the circular, the issue was examined after keeping in mind judgments of CESTAT in Gujarat Ambuja Cement Ltd. and M/s. Ultratech Cement Ltd. Those judgments, obviously, dealt with unamended Rule 2(l) of Rules, 2004. The three conditions which were mentioned explaining the ‘place of removal’ as defined under Section 4 of the Act, there is no quarrel upto this stage. However, the important aspect of the matter is that Cenvat Credit is permissible in respect of ‘input service’ and the Circular relates to the unamended regime. Therefore, it cannot be applied after amendment in the definition of ‘input service’ which brought about a total change. Now, the definition of ‘place of removal’ and the conditions which are to be satisfied have to be in the context of ‘upto’ the place of removal. It is this amendment which has made the entire difference. That aspect is not dealt with in the said Board’s circular, nor it could be.12. Secondly, if such a circular is made applicable even in respect of post amendment cases, it would be violative of Rule 2(l) of Rules, 2004 and such a situation cannot be countenanced.13. | 1[ds]It may be relevant to point out here that the original definition of ‘inputcontained in Rule 2(l) of the Rules, 2004 used the expression ‘from the place ofAs per the said definition, service used by the manufacturer of clearance of final products ‘from the place ofto the warehouse orplace etc., was exigible for Cenvat Credit. This stands finally decided in Civil Appeal No. 11710 of 2016 (Commissioner of Central Excise Belgaum v. M/s. Vasavadatta Cements Ltd.) vide judgment dated January 17, 2018. However, vide amendment carried out in the aforesaid Rules in the year 2008, which became effective from March 1, 2008, the wordis replaced by the wordThus, it is only ‘upto the place ofthat service is treated as input service. This amendment has changed the entire scenario. The benefit which was admissible even beyond the place of removal now gets terminated at the place of removal and doors to the cenvat credit of input tax paid gets closed at that place. This credit cannot travel therefrom. It becomes clear from the bare reading of this amended Rule, which applies to the period in question that the Goods Transport Agency service used for the purpose of outward transportation of goods, i.e. from the factory topremises, is not covered within the ambit of Rule 2(l)(i) of Rules, 2004. Whereas the wordis the indicator of starting point, the expressionsignifies the terminating point, putting an end to the transport journey. We, therefore, find that the Adjudicating Authority was right in interpreting Rule 2(l) in the followingThe input service has been defined to mean any service used by the manufacturer whether directly or indirectly and also includes, interalia, services used in relation to inward transportation of inputs or export goods and outward transportation upto the place of removal. The two clauses in the definition of ‘inputtake care to circumscribe input credit by stating that service used in relation to the clearance from the place of removal and service used for outward transportation upto the place of removal are to be treated as input service. The first clause does not mention transport service in particular. The second clause restricts transport service credit upto the place of removal. When these two clauses are read together, it becomes clear that transport services credit cannot go beyond transport upto the place of removal. The two clauses, the one dealing with general provision and other dealing with a specific item, are not to be read disjunctively so as to bring about conflict to defeat thescheme. The purpose of interpretation is to find harmony and reconciliation among the various provisions.15. Credit availability is in regard toThe credit covers duty paid on input materials as well as tax paid on services, used in or in relation to the manufacture of the ‘finalThe final products, manufactured by the assessee in their factory premises and once the final products are fully manufactured and cleared from the factory premises, the question of utilization of service does not arise as such services cannot be considered as used in relation to the manufacture of the final product. Therefore, extending the credit beyond the point of removal of the final product on payment of duty would be contrary to the scheme of Cenvat Credit Rules. The main clause in the definition states that the service in regard to which credit of tax is sought, should be used in or in relation to clearance of the final products from the place of removal. The definition of input services should be read as a whole and should not be fragmented in order to avail ineligible credit. Once the clearances have taken place, the question of granting input service stage credit does not arise. Transportation is an entirely different activity from manufacture and this position remains settled by the judgment of Honorable Supreme Court in the cases of Bombay Tyre International 1983 (14) ELT, Indian Oxygen Ltd. 1988 (36) ELT 723 SC and Baroda Electric Meters 1997 (94) ELT 13 SC. The post removal transport of manufactured goods is not an input for the manufacturer. Similarly, in the case of M/s. Ultratech Cements Ltd. v. CCE, Bhatnagar 2007 (6) STR 364 (Tri), it was held that after the final products are cleared from the place of removal, there will be no scope of subsequent use of service to be treated as input. The above observations and views explain the scope of relevant provisions clearly, correctly and in accordance with the legalIt is an admitted position that the instant case does not fall in(i) and the issue is to be decided on the application of(ii). Reading of the aforesaid provision makes it clear that those services are included which are used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products ‘upto the place ofWe are afraid that the aforesaid approach of the Courts below is clearly untenable for the followingIn the first instance, it needs to be kept in mind thatCircular dated August 23, 2007 was issued in clarification of the definition of ‘inputas existed on that date i.e. it related to unamendedAs can be seen from the reading of the aforesaid portion of the circular, the issue was examined after keeping in mind judgments of CESTAT in Gujarat Ambuja Cement Ltd. and M/s. Ultratech Cement Ltd. Those judgments, obviously, dealt with unamended Rule 2(l) of Rules, 2004. The three conditions which were mentioned explaining the ‘place ofas defined under Section 4 of the Act, there is no quarrel upto this stage. However, the important aspect of the matter is that Cenvat Credit is permissible in respect of ‘inputand the Circular relates to the unamended regime. Therefore, it cannot be applied after amendment in the definition of ‘inputwhich brought about a total change. Now, the definition of ‘place ofand the conditions which are to be satisfied have to be in the context ofthe place of removal. It is this amendment which has made the entire difference. That aspect is not dealt with in the saidcircular, nor it couldSecondly, if such a circular is made applicable even in respect of post amendment cases, it would be violative of Rule 2(l) of Rules, 2004 and such a situation cannot be countenanced. | 1 | 3,543 | 1,185 | ### 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:
the following reasons:10. In the first instance, it needs to be kept in mind that Board’s Circular dated August 23, 2007 was issued in clarification of the definition of ‘input service’ as existed on that date i.e. it related to unamended definition. Relevant portion of the said circular is as under:“ISSUE: Up to what stage a manufacturer/consignor can take credit on the service tax paid on goods transport by road?COMMENTS: This issue has been examined in great detail by the CESTAT in the case of M/s Gujarat Ambuja Cements Ltd. vs CCE, Ludhiana [2007 (6) STR 249 Tri-D]. In this case, CESTAT has made the following observations:-“the post sale transport of manufactured goods is not an input for the manufacturer/consignor. The two clauses in the definition of ‘input services’ take care to circumscribe input credit by stating that service used in relation to the clearance from the place of removal and service used for outward transportation upto the place of removal are to be treated as input service. The first clause does not mention transport service in particular. The second clause restricts transport service credit upto the place of removal. When these two clauses are read together, it becomes clear that transport service credit cannot go beyond transport upto the place of removal. The two clauses, the one dealing with general provision and other dealing with a specific item, are not to be read disjunctively so as to bring about conflict to defeat the laws’ scheme. The purpose of interpretation is to find harmony and reconciliation among the various provisions”.Similarly, in the case of M/s Ultratech Cements Ltd vs CCE Bhavnagar 2007-TOIL-429-CESTAT-AHM, it was held that after the final products are cleared from the place of removal, there will be no scope of subsequent use of service to be treated as input. The above observations and views explain the scope of the relevant provisions clearly, correctly and in accordance with the legal provisions. In conclusion, a manufacturer / consignor can take credit on the service tax paid on outward transport of goods up to the place of removal and not beyond that.8.2 In this connection, the phrase ‘place of removal’ needs determination taking into account the facts of an individual case and the applicable provisions. The phrase ‘place of removal’ has not been defined in CENVAT Credit Rules. In terms of sub-rule (t) of rule 2 of the said rules, if any words or expressions are used in the CENVAT Credit Rules, 2004 and are not defined therein but are defined in the Central Excise Act, 1944 or the Finance Act, 1994, they shall have the same meaning for the CENVAT Credit Rules as assigned to them in those Acts. The phrase ‘place of removal’ is defined under section 4 of the Central Excise Act, 1944. It states that,-“place of removal” means-(i) a factory or any other place or premises of production or manufacture of the excisable goods ;(ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be stored without payment of duty ;(iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory;from where such goods are removed.”It is, therefore, clear that for a manufacturer /consignor, the eligibility to avail credit of the service tax paid on the transportation during removal of excisable goods would depend upon the place of removal as per the definition. In case of a factory gate sale, sale from a non-duty paid warehouse, or from a duty paid depot (from where the excisable goods are sold, after their clearance from the factory), the determination of the ‘place of removal’ does not pose much problem. However, there may be situations where the manufacturer /consignor may claim that the sale has taken place at the destination point because in terms of the sale contract /agreement (i) the ownership of goods and the property in the goods remained with the seller of the goods till the delivery of the goods in acceptable condition to the purchaser at his door step; (ii) the seller bore the risk of loss of or damage to the goods during transit to the destination; and (iii) the freight charges were an integral part of the price of goods. In such cases, the credit of the service tax paid on the transportation up to such place of sale would be admissible if it can be established by the claimant of such credit that the sale and the transfer of property in goods (in terms of the definition as under section 2 of the Central Excise Act, 1944 as also in terms of the provisions under the Sale of Goods Act, 1930) occurred at the said place.”11. As can be seen from the reading of the aforesaid portion of the circular, the issue was examined after keeping in mind judgments of CESTAT in Gujarat Ambuja Cement Ltd. and M/s. Ultratech Cement Ltd. Those judgments, obviously, dealt with unamended Rule 2(l) of Rules, 2004. The three conditions which were mentioned explaining the ‘place of removal’ as defined under Section 4 of the Act, there is no quarrel upto this stage. However, the important aspect of the matter is that Cenvat Credit is permissible in respect of ‘input service’ and the Circular relates to the unamended regime. Therefore, it cannot be applied after amendment in the definition of ‘input service’ which brought about a total change. Now, the definition of ‘place of removal’ and the conditions which are to be satisfied have to be in the context of ‘upto’ the place of removal. It is this amendment which has made the entire difference. That aspect is not dealt with in the said Board’s circular, nor it could be.12. Secondly, if such a circular is made applicable even in respect of post amendment cases, it would be violative of Rule 2(l) of Rules, 2004 and such a situation cannot be countenanced.13.
### Response:
1
### Explanation:
ofto the warehouse orplace etc., was exigible for Cenvat Credit. This stands finally decided in Civil Appeal No. 11710 of 2016 (Commissioner of Central Excise Belgaum v. M/s. Vasavadatta Cements Ltd.) vide judgment dated January 17, 2018. However, vide amendment carried out in the aforesaid Rules in the year 2008, which became effective from March 1, 2008, the wordis replaced by the wordThus, it is only ‘upto the place ofthat service is treated as input service. This amendment has changed the entire scenario. The benefit which was admissible even beyond the place of removal now gets terminated at the place of removal and doors to the cenvat credit of input tax paid gets closed at that place. This credit cannot travel therefrom. It becomes clear from the bare reading of this amended Rule, which applies to the period in question that the Goods Transport Agency service used for the purpose of outward transportation of goods, i.e. from the factory topremises, is not covered within the ambit of Rule 2(l)(i) of Rules, 2004. Whereas the wordis the indicator of starting point, the expressionsignifies the terminating point, putting an end to the transport journey. We, therefore, find that the Adjudicating Authority was right in interpreting Rule 2(l) in the followingThe input service has been defined to mean any service used by the manufacturer whether directly or indirectly and also includes, interalia, services used in relation to inward transportation of inputs or export goods and outward transportation upto the place of removal. The two clauses in the definition of ‘inputtake care to circumscribe input credit by stating that service used in relation to the clearance from the place of removal and service used for outward transportation upto the place of removal are to be treated as input service. The first clause does not mention transport service in particular. The second clause restricts transport service credit upto the place of removal. When these two clauses are read together, it becomes clear that transport services credit cannot go beyond transport upto the place of removal. The two clauses, the one dealing with general provision and other dealing with a specific item, are not to be read disjunctively so as to bring about conflict to defeat thescheme. The purpose of interpretation is to find harmony and reconciliation among the various provisions.15. Credit availability is in regard toThe credit covers duty paid on input materials as well as tax paid on services, used in or in relation to the manufacture of the ‘finalThe final products, manufactured by the assessee in their factory premises and once the final products are fully manufactured and cleared from the factory premises, the question of utilization of service does not arise as such services cannot be considered as used in relation to the manufacture of the final product. Therefore, extending the credit beyond the point of removal of the final product on payment of duty would be contrary to the scheme of Cenvat Credit Rules. The main clause in the definition states that the service in regard to which credit of tax is sought, should be used in or in relation to clearance of the final products from the place of removal. The definition of input services should be read as a whole and should not be fragmented in order to avail ineligible credit. Once the clearances have taken place, the question of granting input service stage credit does not arise. Transportation is an entirely different activity from manufacture and this position remains settled by the judgment of Honorable Supreme Court in the cases of Bombay Tyre International 1983 (14) ELT, Indian Oxygen Ltd. 1988 (36) ELT 723 SC and Baroda Electric Meters 1997 (94) ELT 13 SC. The post removal transport of manufactured goods is not an input for the manufacturer. Similarly, in the case of M/s. Ultratech Cements Ltd. v. CCE, Bhatnagar 2007 (6) STR 364 (Tri), it was held that after the final products are cleared from the place of removal, there will be no scope of subsequent use of service to be treated as input. The above observations and views explain the scope of relevant provisions clearly, correctly and in accordance with the legalIt is an admitted position that the instant case does not fall in(i) and the issue is to be decided on the application of(ii). Reading of the aforesaid provision makes it clear that those services are included which are used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products ‘upto the place ofWe are afraid that the aforesaid approach of the Courts below is clearly untenable for the followingIn the first instance, it needs to be kept in mind thatCircular dated August 23, 2007 was issued in clarification of the definition of ‘inputas existed on that date i.e. it related to unamendedAs can be seen from the reading of the aforesaid portion of the circular, the issue was examined after keeping in mind judgments of CESTAT in Gujarat Ambuja Cement Ltd. and M/s. Ultratech Cement Ltd. Those judgments, obviously, dealt with unamended Rule 2(l) of Rules, 2004. The three conditions which were mentioned explaining the ‘place ofas defined under Section 4 of the Act, there is no quarrel upto this stage. However, the important aspect of the matter is that Cenvat Credit is permissible in respect of ‘inputand the Circular relates to the unamended regime. Therefore, it cannot be applied after amendment in the definition of ‘inputwhich brought about a total change. Now, the definition of ‘place ofand the conditions which are to be satisfied have to be in the context ofthe place of removal. It is this amendment which has made the entire difference. That aspect is not dealt with in the saidcircular, nor it couldSecondly, if such a circular is made applicable even in respect of post amendment cases, it would be violative of Rule 2(l) of Rules, 2004 and such a situation cannot be countenanced.
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C. C. Padmanabhan and Others Vs. Director of Public Instructions and Others | two items:(a) Special pay in lieu of higher time scale of pay.(b) Special pay for specifically arduous nature of work.The expression special pay in lieu of higher time scale of pay may be better understood with reference to the provisions of rule 12(31) of the Kerala Service Rules which may be extracted here:"12(31) Special Pay:-means an addition of the nature of pay to the emoluments of a post or of an officer granted in consideration of the following:"(a) Where a post would call for a higher scale of pay in view of the additional and/or higher responsibilities attached to it: or"(b) Where the nature of work is specially arduous; or"(c) Where an officer has to attend to work in addition to normal duties attached to his post."Sub-clauses (b) &(c) of clause (31) obviously relate to posts having the same designation or the same nature of duties in the same time scale which is not the case here. On the other hand, the special pay granted to an A.E.O. would squarely fall within the sub-clause (a) of clause (31), in view of the nature of higher responsibilities shouldered by him. And if that be so, the grad e of the post of an A.E.O. must be equated to the time scale plus special pay, which would be a grade higher than the one available to an H.S.A.11. In contending to the contrary Mr. Abdul Khader sought support from P. G. Joshi and others, etc etc, v. The Director General, Posts and Telegraphs, New Delhi, etc.(1), in which the posts of Wireless Licence Inspectors and Town Inspectors, to such of which a special pay of Rs. 30/- was attached, were held equivalent to those of clerks, the time scale for all the three being the same. The dictum in that case is, however, not applicable to the facts with which we are concerned. Therein this Court took note of the definition of special pay occurring in Fundamental 9(25) which states:"Special pay means, an addition of the nature of pay, to the emoluments of a post or of a Government servant, granted in consideration of(a) the specially arduous nature of the duties; or(b) a specific addition to the work or responsibility; or(c) the unhealthiness of the locality in which the work is performed."then proceeded to observe:"The provision for payment of a special pay of Rs. 30/- in addition to the time scale of pay of clerks is inconsistent with the constitution of a separate cadre of Wireless Licence Inspectors and Town Inspectors. The provision for special pay shows that they continue in the cadre of time-scale clerks. Appointment as Wireless Licence Inspectors or Town Inspectors is not a case of transfer from one cadre to another or a case of promotion from a lower cadre to a higher cadre or from a lower post to a higher post. Though, for directly recruited Wireless Inspectors, there is an avenue of promotion from those posts to the post of Wireless Investigating Inspectors, no such avenue of promotion has been shown to exist for Wireless Licence Inspectors appointed from amongst time-scale clerks. Their avenues of promotion are from their substantive posts of time-scale clerks. The posts of Wireless Licence Inspectors to which time-scale clerks are appointed by selection did not constitute a separate cadre and the appointments are not by way of promotion. The posts of Wireless Licence Inspectors are in the cadre of time- scale clerks and carry a special pay on account of additional work."Special pay of Rs. 30/- in that case, it may thus be seen something quite different from the special pay in the instant case which, as we have already found, was fitted in lieu of a higher scale of pay consistent with the higher responsibilities which are entailed in the performance of his functions by an A.E.O. All the three clauses of Fundamental Rule 9(25) correspond with the definition of special pay contained in sub-clauses (b) &(c) of clause (31) of rule 12 of the Kerala Service Rules and none of them takes within its sweep the type of special pay envisaged by sub-clause (a) of rule 12(31). The case cited is thus fully distinguishable and is of no assistance to the case propounded on behalf of the State Government.12. We now take up the second limb of the argument of Mr. Nair, namely, that even if the post of an A.E.O. is not regarded as higher to that of an H.S.A. either category-wise or grade-wise, the impugned reversions are still hit by article 14 of the Constitution of India. In this connection two important factors have to be taken note of. The first is that the post of an A.E.O. carries a special pay of Rs. 50/- per month, and, therefore, ensures for its incumbents higher emoluments than are available to an H.S.A. The second is that the special pay is counted towards pension as is made out on a reading of rules 12(23) and 62 of the Kerala Service Rules. According to rule 12(23) special pay is part of pay while rule 62 states inter alia that emoluments which are reckoned for pension include pay as defined in rule 12(23). The post of an A.E.O. thus carries with it not only benefits enjoyable by the incumbent so long as he holds the post but also such as are availa ble to him after retirement. The substantial improvements in the benefits which an H.S.A. thus enjoys after his posting as an A.E.O. constitute a compelling circumstance which would necessitate the formulation of rational criteria to be followed in transferring an H.S.A. as an A.E.O. and vice-versa so that mere caprice does not deprive an A.E.O. of the benefits enjoyed by him. The direction contained in the letter dated 19-5-1977 that an A.E.O. should be transferred back as an H.S.A. after six years of service as A.E.O. is wholly arbitrary and not based on any principle. It is, therefore, violative of article 14 and we hold it to be so. | 1[ds]8. Here we may briefly advert to the constitution of the Kerala General Education Service as detailed in G.O. (P) No. 356/PD, dated 28th October, 1967 and published in Kerala Gazette No. 46, dated 21st November 1967. That Service is divided into two classes. The post of the District Educational officer falls in Class I which is superior to Class II. The posts enumerated in Class II include those of Headmasters of High Schools. The post of H.S.A. does not find a place in either Class. On the other hand the H.S.A. belongs to the Kerala Educational Subordinate Services and works under the Headmaster of a High School. He is, therefore, two steps below the District Educational officers. Mr. Nair sought to utilise this circumstance as another pointer to the post of H.S.A. lying in a category lower tha n that of an A.E.O. for, according to him, the latter was only one step below the post of a District Educational officer. The argument has not commended itself to us as no foundation has been laid for the assumption that the post of an A.E.O. furnishes an immediate avenue of promotion to that of the District Educational officer. In fact an indication to the contrary is provided by the various categories listed in Classes I and II mentioned above, neither of which include s either H.S.As. or A.E.Os. This may well mean that the A.E.O. too is to hold another post (out of those listed for the purpose in the G.O. last mentioned) before he would have a chance of promotion as a District Educational officer. And if that b e so, an A.E.O. must also be regarded as two steps below a District Educational officer. The G.O. under consideration is, therefore, of no help to the case of the appellant, but then this conclusion does not adversely affect the finding already arrived at by us otherwise to the effect that the post of an A.E.O. lies in a higherthe Government has been appointing A.E.Os, also as Headmasters of High Schools which means that A.E.Os are equated with H.S.As. Now this is, to say the least. a strange argument. If the rules do not permit A.E.Os. to become Headmasters of High Schools but the Government has been posting them as such in contravention of the rules it would not follow that the rules automatically stand amended to be read in conformity with the contravention. In any case, there is no incongruity in two categories of posts, one higher and the other lower, furnishing two sources of recruitment to another higher post; and it would not necessarily follow from such a practice that the two sources must be regarded as equivalent to each other for allpay of Rs. 30/- in that case, it may thus be seen something quite different from the special pay in the instant case which, as we have already found, was fitted in lieu of a higher scale of pay consistent with the higher responsibilities which are entailed in the performance of his functions by an A.E.O. All the three clauses of Fundamental Rule 9(25) correspond with the definition of special pay contained in sub-clauses (b) &(c) of clause (31) of rule 12 of the Kerala Service Rules and none of them takes within its sweep the type of special pay envisaged by sub-clause (a) of rule 12(31). The case cited is thus fully distinguishable and is of no assistance to the case propounded on behalf of the State Government.12.We now take up the second limb of the argument of Mr. Nair, namely, that even if the post of an A.E.O. is not regarded as higher to that of an H.S.A. eithere, the impugned reversions are still hit by article 14 of the Constitution of India.In this connection two important factors have to be taken note of. The first is that the post of an A.E.O. carries a special pay of Rs. 50/- per month, and, therefore, ensures for its incumbents higher emoluments than are available to an H.S.A. The second is that the special pay is counted towards pension as is made out on a reading of rules 12(23) and 62 of the Kerala Service Rules. According to rule 12(23) special pay is part of pay while rule 62 states inter alia that emoluments which are reckoned for pension include pay as defined in rule 12(23). The post of an A.E.O. thus carries with it not only benefits enjoyable by the incumbent so long as he holds the post but also such as are availa ble to him after retirement. The substantial improvements in the benefits which an H.S.A. thus enjoys after his posting as an A.E.O. constitute a compelling circumstance which would necessitate the formulation of rational criteria to be followed in transferring an H.S.A. as an A.E.O. and vice-versa so that mere caprice does not deprive an A.E.O. of the benefits enjoyed by him. The direction contained in the letter dated 19-5-1977 that an A.E.O. should be transferred back as an H.S.A. after six years of service as A.E.O. is wholly arbitrary and not based on any principle. It is, therefore, violative of article 14 and we hold it to bea necessary consequence if any of the appellants has had to relinquish charge of the post of A.E.O. in compliance with such orders, he shall be deemed to have continued to hold the post of an A.E.O. (in spite of and right from the date of the order of his transfer as H.S.A.) and to be entitled to all the benefits pertaining to that post, and the respondents are directed to repost him as A.E.O. as expeditiously as possible and within a month from the date of this order at the latest.14. We make it clear that the vice of arbitrariness and other infirmities we have pointed out are curable if only the State Government amends the rules fairly and rationally. This judgment does not stand in the way of Government framing new rules or amending the old rules but such rules must be in conformity with Part III of thehearing learned counsel for the parties at length we find both these contentions to beis common ground between the parties that in the instant case the two posts belong to the same service or class of service. Applying the above test, therefore, to them it would follow that the appointment of an H.S.A. to the post of an A.E.O. would be a promotion if, and onlythe post of an A.E.O. is of a higher category than that of an H.S.A.or(b) the post of an A.E.O. carries a higher grade than that of an H.S.A.In case of either of these conditions being fulfilled, the appointment of an H.S.A. to the post of an A.E.O. would be a promotion within the meaning of the clause above reproduced.r ascertaining whether or not the post of A.E.O. lies in a category higher than that of an H.S.A. a reference may be made to clauses (5) and (7a) of rule 2 of the Kerala Education Rules, 1959 and section 12A ofthe Kerala Education Act,combined effect of these provisions is that if so authorised by the Government an A.E.O. shall have the power to take disciplinary proceedings against a teacher, including a Headmaster, of an aided school, to suspend him when such proceedings are proposed to be taken and to impose upon him all or any of the penalties to which he may be liable under the relevantthe Government has been appointing A.E.Os, also as Headmasters of High Schools which means that A.E.Os are equated with H.S.As. Now this is, to say the least. a strange argument. If the rules do not permit A.E.Os. to become Headmasters of High Schools but the Government has been posting them as such in contravention of the rules it would not follow that the rules automatically stand amended to be read in conformity with the contravention. In any case, there is no incongruity in two categories of posts, one higher and the other lower, furnishing two sources of recruitment to another higher post; and it would not necessarily follow from such a practice that the two sources must be regarded as equivalent to each other for allthis connection two important factors have to be taken note of. The first is that the post of an A.E.O. carries a special pay of Rs. 50/per month, and, therefore, ensures for its incumbents higher emoluments than are available to an H.S.A. The second is that the special pay is counted towards pension as is made out on a reading of rules 12(23) and 62 of the Kerala Service Rules. According to rule 12(23) special pay is part of pay while rule 62 states inter alia that emoluments which are reckoned for pension include pay as defined in rule 12(23). The post of an A.E.O. thus carries with it not only benefits enjoyable by the incumbent so long as he holds the post but also such as are availa ble to him after retirement. The substantial improvements in the benefits which an H.S.A. thus enjoys after his posting as an A.E.O. constitute a compelling circumstance which would necessitate the formulation of rational criteria to be followed in transferring an H.S.A. as an A.E.O. andso that mere caprice does not deprive an A.E.O. of the benefits enjoyed by him. The direction contained in the letter datedthat an A.E.O. should be transferred back as an H.S.A. after six years of service as A.E.O. is wholly arbitrary and not based on any principle. It is, therefore, violative of article 14 and we hold it to be | 1 | 3,935 | 1,801 | ### 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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two items:(a) Special pay in lieu of higher time scale of pay.(b) Special pay for specifically arduous nature of work.The expression special pay in lieu of higher time scale of pay may be better understood with reference to the provisions of rule 12(31) of the Kerala Service Rules which may be extracted here:"12(31) Special Pay:-means an addition of the nature of pay to the emoluments of a post or of an officer granted in consideration of the following:"(a) Where a post would call for a higher scale of pay in view of the additional and/or higher responsibilities attached to it: or"(b) Where the nature of work is specially arduous; or"(c) Where an officer has to attend to work in addition to normal duties attached to his post."Sub-clauses (b) &(c) of clause (31) obviously relate to posts having the same designation or the same nature of duties in the same time scale which is not the case here. On the other hand, the special pay granted to an A.E.O. would squarely fall within the sub-clause (a) of clause (31), in view of the nature of higher responsibilities shouldered by him. And if that be so, the grad e of the post of an A.E.O. must be equated to the time scale plus special pay, which would be a grade higher than the one available to an H.S.A.11. In contending to the contrary Mr. Abdul Khader sought support from P. G. Joshi and others, etc etc, v. The Director General, Posts and Telegraphs, New Delhi, etc.(1), in which the posts of Wireless Licence Inspectors and Town Inspectors, to such of which a special pay of Rs. 30/- was attached, were held equivalent to those of clerks, the time scale for all the three being the same. The dictum in that case is, however, not applicable to the facts with which we are concerned. Therein this Court took note of the definition of special pay occurring in Fundamental 9(25) which states:"Special pay means, an addition of the nature of pay, to the emoluments of a post or of a Government servant, granted in consideration of(a) the specially arduous nature of the duties; or(b) a specific addition to the work or responsibility; or(c) the unhealthiness of the locality in which the work is performed."then proceeded to observe:"The provision for payment of a special pay of Rs. 30/- in addition to the time scale of pay of clerks is inconsistent with the constitution of a separate cadre of Wireless Licence Inspectors and Town Inspectors. The provision for special pay shows that they continue in the cadre of time-scale clerks. Appointment as Wireless Licence Inspectors or Town Inspectors is not a case of transfer from one cadre to another or a case of promotion from a lower cadre to a higher cadre or from a lower post to a higher post. Though, for directly recruited Wireless Inspectors, there is an avenue of promotion from those posts to the post of Wireless Investigating Inspectors, no such avenue of promotion has been shown to exist for Wireless Licence Inspectors appointed from amongst time-scale clerks. Their avenues of promotion are from their substantive posts of time-scale clerks. The posts of Wireless Licence Inspectors to which time-scale clerks are appointed by selection did not constitute a separate cadre and the appointments are not by way of promotion. The posts of Wireless Licence Inspectors are in the cadre of time- scale clerks and carry a special pay on account of additional work."Special pay of Rs. 30/- in that case, it may thus be seen something quite different from the special pay in the instant case which, as we have already found, was fitted in lieu of a higher scale of pay consistent with the higher responsibilities which are entailed in the performance of his functions by an A.E.O. All the three clauses of Fundamental Rule 9(25) correspond with the definition of special pay contained in sub-clauses (b) &(c) of clause (31) of rule 12 of the Kerala Service Rules and none of them takes within its sweep the type of special pay envisaged by sub-clause (a) of rule 12(31). The case cited is thus fully distinguishable and is of no assistance to the case propounded on behalf of the State Government.12. We now take up the second limb of the argument of Mr. Nair, namely, that even if the post of an A.E.O. is not regarded as higher to that of an H.S.A. either category-wise or grade-wise, the impugned reversions are still hit by article 14 of the Constitution of India. In this connection two important factors have to be taken note of. The first is that the post of an A.E.O. carries a special pay of Rs. 50/- per month, and, therefore, ensures for its incumbents higher emoluments than are available to an H.S.A. The second is that the special pay is counted towards pension as is made out on a reading of rules 12(23) and 62 of the Kerala Service Rules. According to rule 12(23) special pay is part of pay while rule 62 states inter alia that emoluments which are reckoned for pension include pay as defined in rule 12(23). The post of an A.E.O. thus carries with it not only benefits enjoyable by the incumbent so long as he holds the post but also such as are availa ble to him after retirement. The substantial improvements in the benefits which an H.S.A. thus enjoys after his posting as an A.E.O. constitute a compelling circumstance which would necessitate the formulation of rational criteria to be followed in transferring an H.S.A. as an A.E.O. and vice-versa so that mere caprice does not deprive an A.E.O. of the benefits enjoyed by him. The direction contained in the letter dated 19-5-1977 that an A.E.O. should be transferred back as an H.S.A. after six years of service as A.E.O. is wholly arbitrary and not based on any principle. It is, therefore, violative of article 14 and we hold it to be so.
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not regarded as higher to that of an H.S.A. eithere, the impugned reversions are still hit by article 14 of the Constitution of India.In this connection two important factors have to be taken note of. The first is that the post of an A.E.O. carries a special pay of Rs. 50/- per month, and, therefore, ensures for its incumbents higher emoluments than are available to an H.S.A. The second is that the special pay is counted towards pension as is made out on a reading of rules 12(23) and 62 of the Kerala Service Rules. According to rule 12(23) special pay is part of pay while rule 62 states inter alia that emoluments which are reckoned for pension include pay as defined in rule 12(23). The post of an A.E.O. thus carries with it not only benefits enjoyable by the incumbent so long as he holds the post but also such as are availa ble to him after retirement. The substantial improvements in the benefits which an H.S.A. thus enjoys after his posting as an A.E.O. constitute a compelling circumstance which would necessitate the formulation of rational criteria to be followed in transferring an H.S.A. as an A.E.O. and vice-versa so that mere caprice does not deprive an A.E.O. of the benefits enjoyed by him. The direction contained in the letter dated 19-5-1977 that an A.E.O. should be transferred back as an H.S.A. after six years of service as A.E.O. is wholly arbitrary and not based on any principle. It is, therefore, violative of article 14 and we hold it to bea necessary consequence if any of the appellants has had to relinquish charge of the post of A.E.O. in compliance with such orders, he shall be deemed to have continued to hold the post of an A.E.O. (in spite of and right from the date of the order of his transfer as H.S.A.) and to be entitled to all the benefits pertaining to that post, and the respondents are directed to repost him as A.E.O. as expeditiously as possible and within a month from the date of this order at the latest.14. We make it clear that the vice of arbitrariness and other infirmities we have pointed out are curable if only the State Government amends the rules fairly and rationally. This judgment does not stand in the way of Government framing new rules or amending the old rules but such rules must be in conformity with Part III of thehearing learned counsel for the parties at length we find both these contentions to beis common ground between the parties that in the instant case the two posts belong to the same service or class of service. Applying the above test, therefore, to them it would follow that the appointment of an H.S.A. to the post of an A.E.O. would be a promotion if, and onlythe post of an A.E.O. is of a higher category than that of an H.S.A.or(b) the post of an A.E.O. carries a higher grade than that of an H.S.A.In case of either of these conditions being fulfilled, the appointment of an H.S.A. to the post of an A.E.O. would be a promotion within the meaning of the clause above reproduced.r ascertaining whether or not the post of A.E.O. lies in a category higher than that of an H.S.A. a reference may be made to clauses (5) and (7a) of rule 2 of the Kerala Education Rules, 1959 and section 12A ofthe Kerala Education Act,combined effect of these provisions is that if so authorised by the Government an A.E.O. shall have the power to take disciplinary proceedings against a teacher, including a Headmaster, of an aided school, to suspend him when such proceedings are proposed to be taken and to impose upon him all or any of the penalties to which he may be liable under the relevantthe Government has been appointing A.E.Os, also as Headmasters of High Schools which means that A.E.Os are equated with H.S.As. Now this is, to say the least. a strange argument. If the rules do not permit A.E.Os. to become Headmasters of High Schools but the Government has been posting them as such in contravention of the rules it would not follow that the rules automatically stand amended to be read in conformity with the contravention. In any case, there is no incongruity in two categories of posts, one higher and the other lower, furnishing two sources of recruitment to another higher post; and it would not necessarily follow from such a practice that the two sources must be regarded as equivalent to each other for allthis connection two important factors have to be taken note of. The first is that the post of an A.E.O. carries a special pay of Rs. 50/per month, and, therefore, ensures for its incumbents higher emoluments than are available to an H.S.A. The second is that the special pay is counted towards pension as is made out on a reading of rules 12(23) and 62 of the Kerala Service Rules. According to rule 12(23) special pay is part of pay while rule 62 states inter alia that emoluments which are reckoned for pension include pay as defined in rule 12(23). The post of an A.E.O. thus carries with it not only benefits enjoyable by the incumbent so long as he holds the post but also such as are availa ble to him after retirement. The substantial improvements in the benefits which an H.S.A. thus enjoys after his posting as an A.E.O. constitute a compelling circumstance which would necessitate the formulation of rational criteria to be followed in transferring an H.S.A. as an A.E.O. andso that mere caprice does not deprive an A.E.O. of the benefits enjoyed by him. The direction contained in the letter datedthat an A.E.O. should be transferred back as an H.S.A. after six years of service as A.E.O. is wholly arbitrary and not based on any principle. It is, therefore, violative of article 14 and we hold it to be
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Delhi Development Authority Vs. M/s R.S. Sharma & Co., New Delhi | and statutory provisions, particularly, Section 34(2) of the Act, let us consider whether the Arbitrator as well as the Division Bench of the High Court were justified in granting the Award in respect of Claim Nos.1-3 and additional Claim Nos. 1-3 of the claimant or the appellant-DDA has made out a case for setting aside the Award in respect of those claims with reference to the terms of the Agreement duly executed by both parties. 14) The main dispute relates to extra cartage that is, stone brought from Nooh, Haryana. It is the stand of the claimant that apart from the Agreement dated 18.4.1990, both parties were agreed to abide by the conditions mentioned in the letter dated 10.4.1990 of the claimant - M/s R.S. Sharma & Co. to the Chief Engineer (WZ), DDA, Vikas Minar, New Delhi. In paragraph 6 of the said letter, it was stated as under: "6. We will use Delhi Quartz stone as per CPWD specifications and specifications mentioned in the tender documents. This condition has been accepted by the Department in the case of 1st lowest tenderer for this work." 15) It is stated by the learned counsel appearing for the claimant that since the DDA has not approved Delhi Quartz stone which was not as per CPWD specifications and specifications mentioned in the tender document, stones were brought from Nooh, Haryana which satisfied those specifications. As rightly pointed out by the learned ASG appearing for DDA, there is no specific clause in the terms of agreement for extra cartage for bringing stones from elsewhere. In this regard, the appellant heavily relied on clause 3.16 of the Agreement which reads as under: "3.16 - The collection and stacking of material shall include all leads. The rates quoted by the contractor shall hold good irrespective of the source from which the material are brought so long as they conform to the specifications. The closure of particular quarry will not entitle the contractor to any revision in the rates." 16) The perusal of the Award of the Arbitrator as well as the judgment of the Division Bench clearly shows that they did not advert to the above clause 3.16. It is relevant to point out that the extra cartage has been awarded by the Arbitrator without adverting to clause 3.16 of the Agreement, hence, the learned single Judge was wholly justified in partially setting aside the Award in respect of the claims with respect to the extra cartage. We also perused the pleadings and evidence placed on record pertaining to Claim Nos. 1-3 and additional Claim Nos. 1-3. As rightly observed by the learned single Judge, there was no material on record to substantiate the case of the claimant, viz., DDA had insisted upon the claimant for using the stone aggregates brought from Nooh in Haryana. In those circumstances and of the fact that the terms and conditions of the Agreement are binding on both the parties, in the absence of specific clause with regard to payment of extra cartage and in view of clause 3.16, the respondent-claimant cannot claim extra cartage @ Rs.30/- per cubic meter on the ground of extra lead involved in bringing the stone aggregates from Nooh in Haryana. The Division Bench like the Arbitrator proceeded on the sole basis that DDA had compelled the claimant-Company from bringing the stone aggregates from Nooh in Haryana and committed an error in affirming the erroneous conclusion arrived at by the Arbitrator insofar as the additional claims are concerned. As rightly pointed out by the learned Additional Solicitor General, the Division Bench proceeded on an erroneous premise that the appellant-DDA has nowhere stipulated where the stone was to be brought from. It is true that DDA had given certain specifications required to be conformed. Further, the cost of the work was irrespective of the source or lead from where the stone was brought. The award is completely silent on the relevant clause viz. clause 3.16 of the Agreement which makes it clear that the contractor is wholly responsible for all the extra leads. In fact, the Arbitrator has given no reason whatsoever so far as the rate claimed for the extra lead by the claimant and has verbatim accepted the claim without giving any justification for the same. We are satisfied that this is an error apparent on the face of the record as well as contrary to the terms of the Agreement.17) For the sake of brevity, we point out that in terms of clause 3.16 of the Contract, it is the responsibility of the Contractor to collect and stock the material and the rates quoted by him including all leads irrespective of the source from where the material was brought. However, if DDA had refused to accept the stone aggregate brought to site by the contractor from a quarry in Delhi and insisted upon bringing the material from Nooh quarry, Haryana, the Contractor will be entitled to the extra lead for bringing the said material from Nooh. As rightly pointed out by learned counsel for the appellant, in the present case, there is nothing on record to show that the Department had insisted upon bringing the stone aggregate only from Nooh. Hence, the contractor will not be entitled to the increased rates for extra lead. Without a specific request or additional clause, the Arbitrator in respect of Claim Nos. 1-3 and additional Claim Nos. 1-3 proceeded on the wrong assumption that the Department had insisted upon the use of stone aggregate to be brought from Nooh, hence, the learned single Judge is perfectly right in holding that there is an error apparent on the face of the Award and the Award is liable to be set aside. As stated earlier, the Arbitrator has ignored clause 3.16 of the contract and made a departure from the contract while granting relief in respect of Claim Nos. 1-3 and additional Claim Nos. 1-3 and the same, in our view, cannot be sustained.18) Under these circumstances, we | 1[ds]The perusal of the Award of the Arbitrator as well as the judgment of the Division Bench clearly shows that they did not advert to the above clause 3.16. It is relevant to point out that the extra cartage has been awarded by the Arbitrator without adverting to clause 3.16 of the Agreement, hence, the learned single Judge was wholly justified in partially setting aside the Award in respect of the claims with respect to the extra cartage. We also perused the pleadings and evidence placed on record pertaining to Claim Nos. 1-3 and additional Claim Nos. 1-3. As rightly observed by the learned single Judge, there was no material on record to substantiate the case of the claimant, viz., DDA had insisted upon the claimant for using the stone aggregates brought from Nooh in Haryana. In those circumstances and of the fact that the terms and conditions of the Agreement are binding on both the parties, in the absence of specific clause with regard to payment of extra cartage and in view of clause 3.16, the respondent-claimant cannot claim extra cartage @ Rs.30/- per cubic meter on the ground of extra lead involved in bringing the stone aggregates from Nooh in Haryana. The Division Bench like the Arbitrator proceeded on the sole basis that DDA had compelled the claimant-Company from bringing the stone aggregates from Nooh in Haryana and committed an error in affirming the erroneous conclusion arrived at by the Arbitrator insofar as the additional claims are concerned. As rightly pointed out by the learned Additional Solicitor General, the Division Bench proceeded on an erroneous premise that the appellant-DDA has nowhere stipulated where the stone was to be brought from. It is true that DDA had given certain specifications required to be conformed. Further, the cost of the work was irrespective of the source or lead from where the stone was brought. The award is completely silent on the relevant clause viz. clause 3.16 of the Agreement which makes it clear that the contractor is wholly responsible for all the extra leads. In fact, the Arbitrator has given no reason whatsoever so far as the rate claimed for the extra lead by the claimant and has verbatim accepted the claim without giving any justification for the same. We are satisfied that this is an error apparent on the face of the record as well as contrary to the terms of the Agreement.17) For the sake of brevity, we point out that in terms of clause 3.16 of the Contract, it is the responsibility of the Contractor to collect and stock the material and the rates quoted by him including all leads irrespective of the source from where the material was brought. However, if DDA had refused to accept the stone aggregate brought to site by the contractor from a quarry in Delhi and insisted upon bringing the material from Nooh quarry, Haryana, the Contractor will be entitled to the extra lead for bringing the said material from Nooh. As rightly pointed out by learned counsel for the appellant, in the present case, there is nothing on record to show that the Department had insisted upon bringing the stone aggregate only from Nooh. Hence, the contractor will not be entitled to the increased rates for extra lead. Without a specific request or additional clause, the Arbitrator in respect of Claim Nos. 1-3 and additional Claim Nos. 1-3 proceeded on the wrong assumption that the Department had insisted upon the use of stone aggregate to be brought from Nooh, hence, the learned single Judge is perfectly right in holding that there is an error apparent on the face of the Award and the Award is liable to be set aside. As stated earlier, the Arbitrator has ignored clause 3.16 of the contract and made a departure from the contract while granting relief in respect of Claim Nos. 1-3 and additional Claim Nos. 1-3 and the same, in our view, cannot be sustained. | 1 | 5,928 | 717 | ### Instruction:
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and statutory provisions, particularly, Section 34(2) of the Act, let us consider whether the Arbitrator as well as the Division Bench of the High Court were justified in granting the Award in respect of Claim Nos.1-3 and additional Claim Nos. 1-3 of the claimant or the appellant-DDA has made out a case for setting aside the Award in respect of those claims with reference to the terms of the Agreement duly executed by both parties. 14) The main dispute relates to extra cartage that is, stone brought from Nooh, Haryana. It is the stand of the claimant that apart from the Agreement dated 18.4.1990, both parties were agreed to abide by the conditions mentioned in the letter dated 10.4.1990 of the claimant - M/s R.S. Sharma & Co. to the Chief Engineer (WZ), DDA, Vikas Minar, New Delhi. In paragraph 6 of the said letter, it was stated as under: "6. We will use Delhi Quartz stone as per CPWD specifications and specifications mentioned in the tender documents. This condition has been accepted by the Department in the case of 1st lowest tenderer for this work." 15) It is stated by the learned counsel appearing for the claimant that since the DDA has not approved Delhi Quartz stone which was not as per CPWD specifications and specifications mentioned in the tender document, stones were brought from Nooh, Haryana which satisfied those specifications. As rightly pointed out by the learned ASG appearing for DDA, there is no specific clause in the terms of agreement for extra cartage for bringing stones from elsewhere. In this regard, the appellant heavily relied on clause 3.16 of the Agreement which reads as under: "3.16 - The collection and stacking of material shall include all leads. The rates quoted by the contractor shall hold good irrespective of the source from which the material are brought so long as they conform to the specifications. The closure of particular quarry will not entitle the contractor to any revision in the rates." 16) The perusal of the Award of the Arbitrator as well as the judgment of the Division Bench clearly shows that they did not advert to the above clause 3.16. It is relevant to point out that the extra cartage has been awarded by the Arbitrator without adverting to clause 3.16 of the Agreement, hence, the learned single Judge was wholly justified in partially setting aside the Award in respect of the claims with respect to the extra cartage. We also perused the pleadings and evidence placed on record pertaining to Claim Nos. 1-3 and additional Claim Nos. 1-3. As rightly observed by the learned single Judge, there was no material on record to substantiate the case of the claimant, viz., DDA had insisted upon the claimant for using the stone aggregates brought from Nooh in Haryana. In those circumstances and of the fact that the terms and conditions of the Agreement are binding on both the parties, in the absence of specific clause with regard to payment of extra cartage and in view of clause 3.16, the respondent-claimant cannot claim extra cartage @ Rs.30/- per cubic meter on the ground of extra lead involved in bringing the stone aggregates from Nooh in Haryana. The Division Bench like the Arbitrator proceeded on the sole basis that DDA had compelled the claimant-Company from bringing the stone aggregates from Nooh in Haryana and committed an error in affirming the erroneous conclusion arrived at by the Arbitrator insofar as the additional claims are concerned. As rightly pointed out by the learned Additional Solicitor General, the Division Bench proceeded on an erroneous premise that the appellant-DDA has nowhere stipulated where the stone was to be brought from. It is true that DDA had given certain specifications required to be conformed. Further, the cost of the work was irrespective of the source or lead from where the stone was brought. The award is completely silent on the relevant clause viz. clause 3.16 of the Agreement which makes it clear that the contractor is wholly responsible for all the extra leads. In fact, the Arbitrator has given no reason whatsoever so far as the rate claimed for the extra lead by the claimant and has verbatim accepted the claim without giving any justification for the same. We are satisfied that this is an error apparent on the face of the record as well as contrary to the terms of the Agreement.17) For the sake of brevity, we point out that in terms of clause 3.16 of the Contract, it is the responsibility of the Contractor to collect and stock the material and the rates quoted by him including all leads irrespective of the source from where the material was brought. However, if DDA had refused to accept the stone aggregate brought to site by the contractor from a quarry in Delhi and insisted upon bringing the material from Nooh quarry, Haryana, the Contractor will be entitled to the extra lead for bringing the said material from Nooh. As rightly pointed out by learned counsel for the appellant, in the present case, there is nothing on record to show that the Department had insisted upon bringing the stone aggregate only from Nooh. Hence, the contractor will not be entitled to the increased rates for extra lead. Without a specific request or additional clause, the Arbitrator in respect of Claim Nos. 1-3 and additional Claim Nos. 1-3 proceeded on the wrong assumption that the Department had insisted upon the use of stone aggregate to be brought from Nooh, hence, the learned single Judge is perfectly right in holding that there is an error apparent on the face of the Award and the Award is liable to be set aside. As stated earlier, the Arbitrator has ignored clause 3.16 of the contract and made a departure from the contract while granting relief in respect of Claim Nos. 1-3 and additional Claim Nos. 1-3 and the same, in our view, cannot be sustained.18) Under these circumstances, we
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The perusal of the Award of the Arbitrator as well as the judgment of the Division Bench clearly shows that they did not advert to the above clause 3.16. It is relevant to point out that the extra cartage has been awarded by the Arbitrator without adverting to clause 3.16 of the Agreement, hence, the learned single Judge was wholly justified in partially setting aside the Award in respect of the claims with respect to the extra cartage. We also perused the pleadings and evidence placed on record pertaining to Claim Nos. 1-3 and additional Claim Nos. 1-3. As rightly observed by the learned single Judge, there was no material on record to substantiate the case of the claimant, viz., DDA had insisted upon the claimant for using the stone aggregates brought from Nooh in Haryana. In those circumstances and of the fact that the terms and conditions of the Agreement are binding on both the parties, in the absence of specific clause with regard to payment of extra cartage and in view of clause 3.16, the respondent-claimant cannot claim extra cartage @ Rs.30/- per cubic meter on the ground of extra lead involved in bringing the stone aggregates from Nooh in Haryana. The Division Bench like the Arbitrator proceeded on the sole basis that DDA had compelled the claimant-Company from bringing the stone aggregates from Nooh in Haryana and committed an error in affirming the erroneous conclusion arrived at by the Arbitrator insofar as the additional claims are concerned. As rightly pointed out by the learned Additional Solicitor General, the Division Bench proceeded on an erroneous premise that the appellant-DDA has nowhere stipulated where the stone was to be brought from. It is true that DDA had given certain specifications required to be conformed. Further, the cost of the work was irrespective of the source or lead from where the stone was brought. The award is completely silent on the relevant clause viz. clause 3.16 of the Agreement which makes it clear that the contractor is wholly responsible for all the extra leads. In fact, the Arbitrator has given no reason whatsoever so far as the rate claimed for the extra lead by the claimant and has verbatim accepted the claim without giving any justification for the same. We are satisfied that this is an error apparent on the face of the record as well as contrary to the terms of the Agreement.17) For the sake of brevity, we point out that in terms of clause 3.16 of the Contract, it is the responsibility of the Contractor to collect and stock the material and the rates quoted by him including all leads irrespective of the source from where the material was brought. However, if DDA had refused to accept the stone aggregate brought to site by the contractor from a quarry in Delhi and insisted upon bringing the material from Nooh quarry, Haryana, the Contractor will be entitled to the extra lead for bringing the said material from Nooh. As rightly pointed out by learned counsel for the appellant, in the present case, there is nothing on record to show that the Department had insisted upon bringing the stone aggregate only from Nooh. Hence, the contractor will not be entitled to the increased rates for extra lead. Without a specific request or additional clause, the Arbitrator in respect of Claim Nos. 1-3 and additional Claim Nos. 1-3 proceeded on the wrong assumption that the Department had insisted upon the use of stone aggregate to be brought from Nooh, hence, the learned single Judge is perfectly right in holding that there is an error apparent on the face of the Award and the Award is liable to be set aside. As stated earlier, the Arbitrator has ignored clause 3.16 of the contract and made a departure from the contract while granting relief in respect of Claim Nos. 1-3 and additional Claim Nos. 1-3 and the same, in our view, cannot be sustained.
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U.P. AWAS EVAM VIKASH PARISHAD Vs. ASHA RAM (D) THR. LRS & ORS | the village where the land is situated and the authority for which the land was acquired to arrive at the market value is produced below. Such table includes the judgments referred to by Mr. Gupta that a sum of Rs.297/- per square yard is the market value of the land acquired. Table 35. The order passed by this Court on 9.11.2017 for fresh determination on the basis of additional documents was based on the judgments pertaining to above-mentioned acquisitions. In terms of the order passed by this Court, no additional evidence was produced before the High Court and the submissions were confined to the material already on record. Such judgments, as discussed above, are later in time except the land situated in Chhalera Khadar, now forming part of Noida, for which notification was published on 19.12.1980. It is pertinent to note that the proximity from Delhi border would not be the determining factor but the distance between the two villages inter se would be relevant as Noida spread over a large area, has different access roads from Delhi and Ghaziabad. However, such distance has not been disclosed. 36. The High Court in Jagdish Chandra & Ors. v. New Okhla Industrial Development Authority, NOIDA & Anr. (First Appeal No. 744 of 2001 decided on 14.12.2007) had determined Rs. 297/- as the market value of the land situated in Chhalera Bangar, now forming part of Noida, intended to be acquired vide notification published under Section 4 of the LA Act on 27.2.1988. The High Court had noted the advantageous location of Noida when it held that: …Valuation of the landed property is enormously rising day by day. The location of the land, as stated, is nearer to developed area of NOIDA. The land is acquired for the purpose of making park. Neither it is required for commercial purpose nor for residential purpose. No question of largeness of the land is available. Therefore, we are not aware what is the basis of deduction. 37. The first notification for acquisition of land in Village Makanpur, the village which is located on both sides of National Highway-24, was published on 26.6.1982, for the land situated on the northern side of the National Highway, that is the notification in question. 38. In Pradeep Kumar, after remand, the High Court awarded Rs.297/- per square yard as the compensation in pursuance of notification dated 15.3.1988 of the land situated in Village Makanpur (Sr. No. 2 in the above table) for the benefit of Noida. This Court in Narendra awarded compensation of Rs.297/- per square yard for the land acquired in Village Makanpur in pursuance of the notification under Section 4 of the LA Act published on 12.9.1986 (Sr. No. 2 in the above table). Such land is in the area of Noida on the southern side of the National Highway. 39. The other villages, subject matter of acquisition i.e. Arthla, Jhandapur, Prahladgarhi, Mahiuddin-Re-Kanawani and Sahibabad are farther away from the National Highway than the land situated in Village Makanpur. Since the Special Land Acquisition Collector as well as the Reference Court has determined uniform compensation for the entire land acquired, therefore, we do not find that the compensation awarded of land situated in Village Makanpur on the basis of notification 4-5 years later is a reasonable yardstick for determining compensation of over 1100 acres of land in the other villages. There is no judicial precedent in respect of land situated in other five villages which are subject matter of the acquisition in the present group of appeals. The orders passed by this Court relied upon are either subsequent to the notification in question and/or for the acquisition for the purpose of planned development of Noida. 40. A compensation of Rs. 297/- per square yard was awarded for land acquired for the purpose of GDA vide notification dated 28.2.1987 and 16.8.1988 (Sr. No. 4 & 5 in the above table). The said acquisition was five years after the acquisition in question. The development activity initiated vide notification dated 26.6.1982 would be relevant to determine the market value on account of acquisition by virtue of the subsequent notification, but time gap of more than five years will not entail the same amount of compensation in respect of the land acquired five years earlier. 41. The compensation determined on the basis of a notification five years later cannot be a yardstick for determining compensation of the land which is subject matter of present acquisition years earlier. Still further, the High Court was not justified in observing that gaps of few years in the notification have been ignored by this Court. In fact, on the contrary, the High Court has failed to note that the date of notification for the acquisition of land for the benefit of Parishad is five years earlier than those in the judgments relied upon by the High Court. 42. In respect of land situated on northern side of National Highway, the land was acquired vide notifications dated 28.2.1987 and 12.9.1986 in the case of Narendra and Kashi; and on 16.8.1988 in the case of Jai Prakash. Whereas, on the southern side of National Highway for the benefit of Noida, the land of Village Makanpur became subject matter of acquisition vide notification dated 10.3.1988 in the case of Pradeep Kumar and on 15.3.1988 in the case of Charan Kaur. 43. For the land situated on the northern side of the National Highway for the benefit of the Parishad, the acquisition has attained finality with the dismissal of SLP (Civil) No. 4636 of 2016 on 28.3.2016. The compensation assessed in the other aforementioned cases is subsequent to the date of notification, therefore, none of the orders are determinative of the amount of compensation. Hence, the market value as determined by the High Court cannot be sustained either on the basis of the sale deeds, or on the strength of judicial orders. There is no justification of enhancement of compensation awarded by the Reference Court i.e. Rs.120/- per square yard. | 1[ds]In the present set of appeals, we are not dealing with the acquisition of land intended to be acquired by way of a notification under Section 4 of the LA Act dated 28.2.1987. Mr. Singh in the written submissions has submitted that the possession was taken over by the GDA on 14.6.1988 and 29.6.1988 which was based upon development work taken place from 1982 onwards. We do not find such facts emanate from the orders passed by the Special Land Acquisition Officer, the Reference Court and the order of the High Court. The land acquired by the GDA is not part of determination of the compensation in the present set of appeals.21. A three Judge Bench of this Court Smt. Tribeni Devi & Ors. v. Collector of Ranchi and Vice Versa, (1972) 1 SCC 480 indicated methods of valuation to be adopted to ascertain the market value of land on the date of the notification under Section 4(1) as: (i) opinion of experts, (ii) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages; and (iii) a number of years purchase of the actual or immediately prospective profits of the lands acquired.22. This Court Gujarat Industrial Development Corpn. v. Narottambhai Morarbhai & Anr., (1996) 11 SCC 159 held that the acid test which the court should always adopt in determining the market value in matters of compulsory acquisition is to eschew feats of imagination and sit in the armchair of a prudent willing purchaser. It was held as under:6. No prudent purchaser would purchase large extent of land on the basis of sale of a small extent of land in the open market. The acid test the court should always adopt in determining market value in the matter of compulsory acquisition would be to eschew feats of imagination, sit in the armchair of a prudent willing purchaser, it should consider whether the willing vendee would offer the rate at which the trial court proposes to determine the compensation. Taking these facts into consideration, we are of the view that the reasonable and adequate compensation for the lands would be at a net rate of Rs 22 per sq. mtr., after giving deduction of 1/3rd of the amount towards developmental charges. Therefore, the claimants would be entitled to the compensation @ Rs 22 per sq. mtr. They are also entitled to the statutory benefits on the enhanced compensation.23. This Court Land Acquisition Officer v. B. Vijender Reddy & Ors., (2001) 10 SCC 669 has also held that in fixation of rate of compensation under the Land Acquisition Act, there is always some element of guesswork but that has to spring from the totality of evidence, the pattern of rate, the pattern of escalation and escalation of price in the years preceding and succeeding the notification under Section 4 of the LA Act. The Court has held that:13. The first question we proceed to consider is, whether the High Court was right to enhance the rate from the rate recorded in Exhibits A-1 and A-2 by Rs 10,000 per acre per year for three years. It is true, in the fixation of rate of compensation under the Land Acquisition Act, there is always some element of guesswork. But that has to be based on some foundation. It must spring from the totality of evidence, the pattern of rate, the pattern of escalation and escalation of price in the years preceding and succeeding Section 4 notification etc. In other words, the guesswork could reasonably be inferable from it. It is always possible to assess the rate within this realm. In the present case, we find there are three exemplars i.e. Exhibits A-1 and A-2 which are three years preceding the date of notification and Exhibit A-3 which is of the same point of time when Section 4 notification was issued.25. This Court General Manager, Oil and Natural Gas Corporation Limited v. Rameshbhai Jivanbhai Patel & Anr., (2008) 14 SCC 745 has delineated the following factors responsible for increase in land prices such as situation of the land, nature of development in surrounding area, availability of land for development in the area, and demand for the land in the area. It was held:16. Much more unsafe is the recent trend to determine the market value of acquired lands with reference to future sale transactions or acquisitions. To illustrate, if the market value of a land acquired in 1992 has to be determined and if there are no sale transactions/acquisitions of 1991 or 1992 (prior to the date of preliminary notification), the statistics relating to sales/acquisitions in future, say of the years 1994-1995 or 1995- 1996 are taken as the base price and the market value in 1992 is worked back by making deductions at the rate of 10% to 15% per annum. How far is this safe? One of the fundamental principles of valuation is that the transactions subsequent to the acquisition should be ignored for determining the market value of acquired lands, as the very acquisition and the consequential development would accelerate the overall development of the surrounding areas resulting in a sudden or steep spurt in the prices. Let us illustrate. Let us assume there was no development activity in a particular area. The appreciation in market price in such area would be slow and minimal. But if some lands in that area are acquired for a residential/commercial/industrial layout, there will be all round development and improvement in the infrastructure/amenities/facilities in the next one or two years, as a result of which the surrounding lands will become more valuable. Even if there is no actual improvement in infrastructure, the potential and possibility of improvement on account of the proposed residential/commercial/industrial layout will result in a higher rate of escalation in prices. As a result, if the annual increase in market value was around 10% per annum before the acquisition, the annual increase of market value of lands in the areas neighbouring the acquired land, will become much more, say 20% to 30%, or even more on account of the development/proposed development. Therefore, if the percentage to be added with reference to previous acquisitions/sale transactions is 10% per annum, the percentage to be deducted to arrive at a market value with reference to future acquisitions/sale transactions should not be 10% per annum, but much more. The percentage of standard increase becomes unreliable. Courts should, therefore, avoid determination of market value with reference to subsequent/future transactions. Even if it becomes inevitable, there should be greater caution in applying the prices fetched for transactions in future. Be that as it may.26. The relationship between the market value of land and its potentiality has also been discussed by this Court Atma Singh (Dead) through LRs & Ors. v. State of Haryana & Anr., (2008) 2 SCC 568 wherein it was observed that-4. … The market value is the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when led out in most advantageous manner excluding any advantage due to carrying out of the scheme for which the property is compulsorily acquired. In considering market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. The guiding star would be the conduct of hypothetical willing vendor who would offer the land and a purchaser in normal human conduct would be willing to buy as a prudent man in normal market conditions but not an anxious dealing at arms length nor facade of sale nor fictitious sale brought about in quick succession or otherwise to inflate the market value. The determination of market value is the prediction of an economic event viz. a price outcome of hypothetical sale expressed in terms of probabilities….5. For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality. It is well settled that market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when led out in its most advantageous manner. The question whether a land has potential value or not, is primarily one of fact depending upon its condition, situation, user to which it is put or is reasonably capable of being put and proximity to residential, commercial or industrial areas or institutions. The existing amenities like water, electricity, possibility of their further extension, whether near about town is developing or has prospect of development have to be taken into consideration…28. The land forming the subject matter of the present appeals was acquired in pursuance of notification under Section 28 of the Act published on 26.6.1982. Therefore, firstly, the attempt to determine the market value should be based on the sale instances, which are proximate to both the date of notification under Section 28 of the Act and to the land sought to be acquired. The land owners have relied upon seven sale instances in respect of villages of which the land was acquired. Out of such seven sale instances, two are almost four years later than the publication of notification under Section 28 of the Act, and thus cannot be taken into consideration in terms of the Section 24 of the LA Act.29. The potentiality of the acquired land is one of the primary factors to be taken into consideration to determine the market value of the land. Potentiality refers to the capacity or possibility for changing or developing into the state of actuality. The market value of a property has to be determined while having due regard to its existing conditions with all the existing advantages and its potential possibility when led out in its most advantageous manner. The question whether a land has potential value or not primarily depends upon its condition, situation, use to which it is put or its reasonable capability of being put and also its proximity to residential, commercial or industrial areas/institutions. The existing amenities like water, electricity as well as the possibility of their further extension, for instance whether near about town is developing or has prospects of development have to be taken into consideration. It also depends upon the connectivity and the overall development of the area.30. The record in the present matter does not suggest that there were large scale development activities. The evidence is rather of sale of small areas. There is nothing on record as to when the industrial units were set up and what was the cost of land. Furthermore, there are no sale instances of land situated in Village Makanpur prior to date of notification i.e. 26.6.1982. The sale instances produced by the land owners pertain to Village Sahibabad and Jhandapur which are at a distance of about 3.5 kms from Delhi border. This Court Mohammad Raofuddin v. Land Acquisition Officer, (2009) 14 SCC 367 while dealing with comparable sale instances has held that-14. Thus, comparable sale instances of similar lands in the neighbourhood at or about the date of notification under Section 4(1) of the Act are the best guide for determination of the market value of the land to arrive at a fair estimate of the amount of compensation payable to a landowner. Nevertheless, while ascertaining compensation, it is the duty of the Court to see that the compensation so determined is just and fair not merely to the individual whose property has been acquired but also to the public which is to pay for it.31. The sale instances of a smaller area have to be considered while keeping in view the principle that where a large area is the subject matter of acquisition, suitable deduction is required to be made as no prudent purchaser would purchase large extent of land on the basis of sale of a small extent in the open market. The Court thus has to consider whether the willing vendee would offer the rate at which the trial court proposes to determine the compensation. This Court has even provided for 50% deduction for development charges on the price mentioned in the sale deed.Himmat Singh & Ors. v. State of Madhya Pradesh & Anr., (2013) 16 SCC 392. 32. The land owners have not produced any other sale deed or award of compensation on account of acquisition of land in the northern side of National Highway-24 prior to notification in question. It could thus lead to an inference that there were not many sale transactions prior to the notification in question. Some industries might have set up their units keeping in view the proximity to Delhi but details regarding when such units were set up and at what price, these units purchased the land have not been brought on record. As mentioned earlier, the market value has to be determined on the basis of what a purchaser is willing to pay on the date of notification. It cannot be as per any rule of thumb without any reference to the prevalent market value on the date of acquisition on record.33. The Reference Court had applied 1/3rd deduction in respect of land situated in Village Sahibabad on the sale price of Rs.180/- per square meters of land measuring 130 square meters vide sale deed dated 26.12.1980 whereas the deduction of 40% deduction in respect of land situated in Village Jhandapur on the sale price of Rs.200/- per square meters of land measuring 50 square yards vide sale deed dated 5.5.1982 in view of the fact that the area sold was very small. The High Court has affirmed such deduction. Thus, we are of the view that the same is reasonable and adequate deduction. Therefore, the market value determined at Rs.120/- per square yard is the appropriate market value on the basis of comparable sale instances.35. The order passed by this Court on 9.11.2017 for fresh determination on the basis of additional documents was based on the judgments pertaining to above-mentioned acquisitions. In terms of the order passed by this Court, no additional evidence was produced before the High Court and the submissions were confined to the material already on record. Such judgments, as discussed above, are later in time except the land situated in Chhalera Khadar, now forming part of Noida, for which notification was published on 19.12.1980. It is pertinent to note that the proximity from Delhi border would not be the determining factor but the distance between the two villages inter se would be relevant as Noida spread over a large area, has different access roads from Delhi and Ghaziabad. However, such distance has not been disclosed.36. The High Court in Jagdish Chandra & Ors. v. New Okhla Industrial Development Authority, NOIDA & Anr. (First Appeal No. 744 of 2001 decided on 14.12.2007) had determined Rs. 297/- as the market value of the land situated in Chhalera Bangar, now forming part of Noida, intended to be acquired vide notification published under Section 4 of the LA Act on 27.2.1988. The High Court had noted the advantageous location of Noida when it held that:…Valuation of the landed property is enormously rising day by day. The location of the land, as stated, is nearer to developed area of NOIDA. The land is acquired for the purpose of making park. Neither it is required for commercial purpose nor for residential purpose. No question of largeness of the land is available. Therefore, we are not aware what is the basis of deduction.37. The first notification for acquisition of land in Village Makanpur, the village which is located on both sides of National Highway-24, was published on 26.6.1982, for the land situated on the northern side of the National Highway, that is the notification in question.38. In Pradeep Kumar, after remand, the High Court awarded Rs.297/- per square yard as the compensation in pursuance of notification dated 15.3.1988 of the land situated in Village Makanpur (Sr. No. 2 in the above table) for the benefit of Noida. This Court in Narendra awarded compensation of Rs.297/- per square yard for the land acquired in Village Makanpur in pursuance of the notification under Section 4 of the LA Act published on 12.9.1986 (Sr. No. 2 in the above table). Such land is in the area of Noida on the southern side of the National Highway.39. The other villages, subject matter of acquisition i.e. Arthla, Jhandapur, Prahladgarhi, Mahiuddin-Re-Kanawani and Sahibabad are farther away from the National Highway than the land situated in Village Makanpur. Since the Special Land Acquisition Collector as well as the Reference Court has determined uniform compensation for the entire land acquired, therefore, we do not find that the compensation awarded of land situated in Village Makanpur on the basis of notification 4-5 years later is a reasonable yardstick for determining compensation of over 1100 acres of land in the other villages. There is no judicial precedent in respect of land situated in other five villages which are subject matter of the acquisition in the present group of appeals. The orders passed by this Court relied upon are either subsequent to the notification in question and/or for the acquisition for the purpose of planned development of Noida.40. A compensation of Rs. 297/- per square yard was awarded for land acquired for the purpose of GDA vide notification dated 28.2.1987 and 16.8.1988 (Sr. No. 4 & 5 in the above table). The said acquisition was five years after the acquisition in question. The development activity initiated vide notification dated 26.6.1982 would be relevant to determine the market value on account of acquisition by virtue of the subsequent notification, but time gap of more than five years will not entail the same amount of compensation in respect of the land acquired five years earlier.41. The compensation determined on the basis of a notification five years later cannot be a yardstick for determining compensation of the land which is subject matter of present acquisition years earlier. Still further, the High Court was not justified in observing that gaps of few years in the notification have been ignored by this Court. In fact, on the contrary, the High Court has failed to note that the date of notification for the acquisition of land for the benefit of Parishad is five years earlier than those in the judgments relied upon by the High Court.42. In respect of land situated on northern side of National Highway, the land was acquired vide notifications dated 28.2.1987 and 12.9.1986 in the case of Narendra and Kashi; and on 16.8.1988 in the case of Jai Prakash. Whereas, on the southern side of National Highway for the benefit of Noida, the land of Village Makanpur became subject matter of acquisition vide notification dated 10.3.1988 in the case of Pradeep Kumar and on 15.3.1988 in the case of Charan Kaur.43. For the land situated on the northern side of the National Highway for the benefit of the Parishad, the acquisition has attained finality with the dismissal of SLP (Civil) No. 4636 of 2016 on 28.3.2016. The compensation assessed in the other aforementioned cases is subsequent to the date of notification, therefore, none of the orders are determinative of the amount of compensation. Hence, the market value as determined by the High Court cannot be sustained either on the basis of the sale deeds, or on the strength of judicial orders. There is no justification of enhancement of compensation awarded by the Reference Court i.e. Rs.120/- per square yard. | 1 | 7,146 | 3,584 | ### 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 village where the land is situated and the authority for which the land was acquired to arrive at the market value is produced below. Such table includes the judgments referred to by Mr. Gupta that a sum of Rs.297/- per square yard is the market value of the land acquired. Table 35. The order passed by this Court on 9.11.2017 for fresh determination on the basis of additional documents was based on the judgments pertaining to above-mentioned acquisitions. In terms of the order passed by this Court, no additional evidence was produced before the High Court and the submissions were confined to the material already on record. Such judgments, as discussed above, are later in time except the land situated in Chhalera Khadar, now forming part of Noida, for which notification was published on 19.12.1980. It is pertinent to note that the proximity from Delhi border would not be the determining factor but the distance between the two villages inter se would be relevant as Noida spread over a large area, has different access roads from Delhi and Ghaziabad. However, such distance has not been disclosed. 36. The High Court in Jagdish Chandra & Ors. v. New Okhla Industrial Development Authority, NOIDA & Anr. (First Appeal No. 744 of 2001 decided on 14.12.2007) had determined Rs. 297/- as the market value of the land situated in Chhalera Bangar, now forming part of Noida, intended to be acquired vide notification published under Section 4 of the LA Act on 27.2.1988. The High Court had noted the advantageous location of Noida when it held that: …Valuation of the landed property is enormously rising day by day. The location of the land, as stated, is nearer to developed area of NOIDA. The land is acquired for the purpose of making park. Neither it is required for commercial purpose nor for residential purpose. No question of largeness of the land is available. Therefore, we are not aware what is the basis of deduction. 37. The first notification for acquisition of land in Village Makanpur, the village which is located on both sides of National Highway-24, was published on 26.6.1982, for the land situated on the northern side of the National Highway, that is the notification in question. 38. In Pradeep Kumar, after remand, the High Court awarded Rs.297/- per square yard as the compensation in pursuance of notification dated 15.3.1988 of the land situated in Village Makanpur (Sr. No. 2 in the above table) for the benefit of Noida. This Court in Narendra awarded compensation of Rs.297/- per square yard for the land acquired in Village Makanpur in pursuance of the notification under Section 4 of the LA Act published on 12.9.1986 (Sr. No. 2 in the above table). Such land is in the area of Noida on the southern side of the National Highway. 39. The other villages, subject matter of acquisition i.e. Arthla, Jhandapur, Prahladgarhi, Mahiuddin-Re-Kanawani and Sahibabad are farther away from the National Highway than the land situated in Village Makanpur. Since the Special Land Acquisition Collector as well as the Reference Court has determined uniform compensation for the entire land acquired, therefore, we do not find that the compensation awarded of land situated in Village Makanpur on the basis of notification 4-5 years later is a reasonable yardstick for determining compensation of over 1100 acres of land in the other villages. There is no judicial precedent in respect of land situated in other five villages which are subject matter of the acquisition in the present group of appeals. The orders passed by this Court relied upon are either subsequent to the notification in question and/or for the acquisition for the purpose of planned development of Noida. 40. A compensation of Rs. 297/- per square yard was awarded for land acquired for the purpose of GDA vide notification dated 28.2.1987 and 16.8.1988 (Sr. No. 4 & 5 in the above table). The said acquisition was five years after the acquisition in question. The development activity initiated vide notification dated 26.6.1982 would be relevant to determine the market value on account of acquisition by virtue of the subsequent notification, but time gap of more than five years will not entail the same amount of compensation in respect of the land acquired five years earlier. 41. The compensation determined on the basis of a notification five years later cannot be a yardstick for determining compensation of the land which is subject matter of present acquisition years earlier. Still further, the High Court was not justified in observing that gaps of few years in the notification have been ignored by this Court. In fact, on the contrary, the High Court has failed to note that the date of notification for the acquisition of land for the benefit of Parishad is five years earlier than those in the judgments relied upon by the High Court. 42. In respect of land situated on northern side of National Highway, the land was acquired vide notifications dated 28.2.1987 and 12.9.1986 in the case of Narendra and Kashi; and on 16.8.1988 in the case of Jai Prakash. Whereas, on the southern side of National Highway for the benefit of Noida, the land of Village Makanpur became subject matter of acquisition vide notification dated 10.3.1988 in the case of Pradeep Kumar and on 15.3.1988 in the case of Charan Kaur. 43. For the land situated on the northern side of the National Highway for the benefit of the Parishad, the acquisition has attained finality with the dismissal of SLP (Civil) No. 4636 of 2016 on 28.3.2016. The compensation assessed in the other aforementioned cases is subsequent to the date of notification, therefore, none of the orders are determinative of the amount of compensation. Hence, the market value as determined by the High Court cannot be sustained either on the basis of the sale deeds, or on the strength of judicial orders. There is no justification of enhancement of compensation awarded by the Reference Court i.e. Rs.120/- per square yard.
### Response:
1
### Explanation:
square yards vide sale deed dated 5.5.1982 in view of the fact that the area sold was very small. The High Court has affirmed such deduction. Thus, we are of the view that the same is reasonable and adequate deduction. Therefore, the market value determined at Rs.120/- per square yard is the appropriate market value on the basis of comparable sale instances.35. The order passed by this Court on 9.11.2017 for fresh determination on the basis of additional documents was based on the judgments pertaining to above-mentioned acquisitions. In terms of the order passed by this Court, no additional evidence was produced before the High Court and the submissions were confined to the material already on record. Such judgments, as discussed above, are later in time except the land situated in Chhalera Khadar, now forming part of Noida, for which notification was published on 19.12.1980. It is pertinent to note that the proximity from Delhi border would not be the determining factor but the distance between the two villages inter se would be relevant as Noida spread over a large area, has different access roads from Delhi and Ghaziabad. However, such distance has not been disclosed.36. The High Court in Jagdish Chandra & Ors. v. New Okhla Industrial Development Authority, NOIDA & Anr. (First Appeal No. 744 of 2001 decided on 14.12.2007) had determined Rs. 297/- as the market value of the land situated in Chhalera Bangar, now forming part of Noida, intended to be acquired vide notification published under Section 4 of the LA Act on 27.2.1988. The High Court had noted the advantageous location of Noida when it held that:…Valuation of the landed property is enormously rising day by day. The location of the land, as stated, is nearer to developed area of NOIDA. The land is acquired for the purpose of making park. Neither it is required for commercial purpose nor for residential purpose. No question of largeness of the land is available. Therefore, we are not aware what is the basis of deduction.37. The first notification for acquisition of land in Village Makanpur, the village which is located on both sides of National Highway-24, was published on 26.6.1982, for the land situated on the northern side of the National Highway, that is the notification in question.38. In Pradeep Kumar, after remand, the High Court awarded Rs.297/- per square yard as the compensation in pursuance of notification dated 15.3.1988 of the land situated in Village Makanpur (Sr. No. 2 in the above table) for the benefit of Noida. This Court in Narendra awarded compensation of Rs.297/- per square yard for the land acquired in Village Makanpur in pursuance of the notification under Section 4 of the LA Act published on 12.9.1986 (Sr. No. 2 in the above table). Such land is in the area of Noida on the southern side of the National Highway.39. The other villages, subject matter of acquisition i.e. Arthla, Jhandapur, Prahladgarhi, Mahiuddin-Re-Kanawani and Sahibabad are farther away from the National Highway than the land situated in Village Makanpur. Since the Special Land Acquisition Collector as well as the Reference Court has determined uniform compensation for the entire land acquired, therefore, we do not find that the compensation awarded of land situated in Village Makanpur on the basis of notification 4-5 years later is a reasonable yardstick for determining compensation of over 1100 acres of land in the other villages. There is no judicial precedent in respect of land situated in other five villages which are subject matter of the acquisition in the present group of appeals. The orders passed by this Court relied upon are either subsequent to the notification in question and/or for the acquisition for the purpose of planned development of Noida.40. A compensation of Rs. 297/- per square yard was awarded for land acquired for the purpose of GDA vide notification dated 28.2.1987 and 16.8.1988 (Sr. No. 4 & 5 in the above table). The said acquisition was five years after the acquisition in question. The development activity initiated vide notification dated 26.6.1982 would be relevant to determine the market value on account of acquisition by virtue of the subsequent notification, but time gap of more than five years will not entail the same amount of compensation in respect of the land acquired five years earlier.41. The compensation determined on the basis of a notification five years later cannot be a yardstick for determining compensation of the land which is subject matter of present acquisition years earlier. Still further, the High Court was not justified in observing that gaps of few years in the notification have been ignored by this Court. In fact, on the contrary, the High Court has failed to note that the date of notification for the acquisition of land for the benefit of Parishad is five years earlier than those in the judgments relied upon by the High Court.42. In respect of land situated on northern side of National Highway, the land was acquired vide notifications dated 28.2.1987 and 12.9.1986 in the case of Narendra and Kashi; and on 16.8.1988 in the case of Jai Prakash. Whereas, on the southern side of National Highway for the benefit of Noida, the land of Village Makanpur became subject matter of acquisition vide notification dated 10.3.1988 in the case of Pradeep Kumar and on 15.3.1988 in the case of Charan Kaur.43. For the land situated on the northern side of the National Highway for the benefit of the Parishad, the acquisition has attained finality with the dismissal of SLP (Civil) No. 4636 of 2016 on 28.3.2016. The compensation assessed in the other aforementioned cases is subsequent to the date of notification, therefore, none of the orders are determinative of the amount of compensation. Hence, the market value as determined by the High Court cannot be sustained either on the basis of the sale deeds, or on the strength of judicial orders. There is no justification of enhancement of compensation awarded by the Reference Court i.e. Rs.120/- per square yard.
|
Sarabhai M.Chemicals Vs. Commnr. Of Cent.Excise,Vadodara | case, we are concerned with the proviso to section 11A(1). 24. In the case of Cosmic Dye Chemical vs. Collector of Central Excise, Bombay reported in 1995(75) ELT 721), this Court held that intention to evade duty must be proved for invoking to section 11A(1) for extended period of limitation. It has been further held that intent to evade duty is built into the expression fraud and collusion but mis-statement and suppression is qualified by the preceding word wilful. Therefore, it is not correct to say that there can be suppression or misstatement of fact, which is not wilful and yet constitutes a permissible ground for invoking the proviso to section 11A. 25. In case of Pushpam Pharmaceuticals Company vs. Collector of Central Excise, Bombay reported, in (1995 (78) ELT 401 ), this Court has held that the extended period of five years under the proviso to section 11A(1) is not applicable just for any omission on the part of the assessee, unless it is a deliberate attempt to escape from payment of duty. Where facts are known to both the parties, the omission by one to do what he might have done and not that he must have done does not constitute suppression of fact. 26. Applying the tests in the aforestated judgments to the facts of the present case, we find that the demands raised by the department in the impugned three show-cause notices were time-barred. The first show-cause notice was dated 30.12.1987. It was in respect of period 1.4.1986 to 30.11.1986. The second show cause notice was dated 6.4.1988. Under the said notice, the department has demanded duty for the period 1.3.1984 to 28.2.1986. The last show-cause notice was dated 20.6.1988, for the period 1.4.1986 to 30.4.1987. Therefore, section 11A(1) was not applicable. 27. The question is, whether in the present case, there was any wilful suppression of facts. On facts, as stated above, we find that the appellant had filed a classification list indicating notification no. 234/86 dated 3.4.1986 as well as the chapter under which the goods fell. We have gone through the classification list. It indicates the claim for exemption. The classification list was duly approved by the department. So also monthly returns were filed by the appellant in the form of RT-12 in which there was a complete disclosure regarding the nature of the goods. These returns were regularly assessed by the department. The material placed on record shows filing of gate passes, invoices, classification list. They indicated the names of the consignees. A mere reading of these names would indicate that sorbitol solution was sold to non-pharmaceutical companies like, M/s Golden Tobacco Co. Ltd., Despite such disclosure, the department approved the classification list as well as RT-12 returns. There was no reopening of the approvals and assessments within the stipulated period. In the circumstances, the judicial Member of the Tribunal was right in holding that no case was made out for invoking the extended period of limitation. As stated above, the end use was built in the exemption notification. Therefore, the department could have demanded duty within one year from the relevant date under section 11A(1). However, this was not done. In the absence of evidence of suppression of facts, the J.M. was right in setting aside the show-cause notices. 28. In the case of Jayant Vitamins Limited vs. Union of India reported in (1991) (53) ELT 278 ), show-cause notice-cum-demand was issued by the department alleging non-user of bulk drugs for specified purpose. In that matter, goods were cleared without payment of duty, as in the present case, on the basis of certificate from Drugs Controller. In that case, same notification no. 234/86 was relied upon by the assessee. However, on facts, the High Court found that the assessee had disclosed the relevant facts in the gate passes and, therefore, it was held that the department was not entitled to invoke the proviso to section 11A(1). In our view, the judgment of the Madhya Pradesh High Court in Jayant Vitamins Ltd. (supra), is not on the applicability of the notification no. 234/86, as it is sought to be urged on behalf of the appellant. The said judgment is only on the point of limitation. It only states that the department was not entitled to invoke the proviso to section 11A(1) as the assessee had indicated in the gate passes the material facts. On this point, before concluding, we may mention that in the present case, we have come to the conclusion that there was no wilful suppression of facts on the part of the appellant as the appellant had filed the gate passes, invoices and monthly returns, which were all duty approved by the department from time to time. The invoices, gate passes and the monthly returns indicated the names of the consignees from which it was possible for the department to infer sale of sorbitol solution to non-pharmaceutical companies and yet no steps were taken by the department to raise the demand in time and, therefore, we hold that there was no wilful suppression of material facts for invoking the proviso to section 11A(1). The facts of the present case are not confined only to gate passes clearances. In such cases, it would not be proper to Courts to rely on the evidence furnished only by gate passes. 29. In the circumstances, although on merits the department succeeds, these appeals need to be allowed as the impugned show-cause notices-cum-demands were time barred and as no case is made out by the department for invocation of the proviso to section 11A(1) of the said Act. 30. Before concluding, we may point out that numerous judgments were cited on behalf of the appellant under the Food Adulteration Act, the Essential Commodities Act and the matters concerning classification dispute. It is not necessary for us to burden this judgment with those cases, particularly, in view of the fact that in the present case, we are concerned with interpretation of an exemption notification. 31. | 1[ds]We do not find any merit in the preliminary submission made on behalf of the appellant. In the present case, we are concerned with exemption notification. It is well settled that an exemption notification has to be strictly interpreted. The conditions for taking the benefit of the exemption have to be strictly interpreted. In the present case, the Third Member has rightly rejected the contention advanced on behalf of the appellant that more than one view was possible on interpretation of exemption notification no. 234/86. The Third Member has recorded a finding that the appellant has not disputed that a certain quantity of sorbitol solution and vitamin C stood cleared to non-pharmaceutical units, namely, soaps, ceramics, rubber and cigarette units. The appellant had conceded before the Tribunal of having cleared 3.87% of the total clearances to non-pharmaceutical companies who could not have used the said solution as drugs or medicines. Moreover, in the present case, the department has not demanded the duty in respect of quantity sold to pharmaceutical concerns for pharmaceuticals or medicinal purposes. In the present case, the dispute was not whether the appellant was entitled to the benefit of the exemption notification in respect of the entirety of goods manufactured and cleared during the period in question, but the dispute was regarding the taking of exemption benefit under the notification in respect of the quantum of bulk drugs cleared to consumers other than the pharmaceutical concerns. In the circumstances, the Third Member was right in deciding the question of limitation as well as the question of applicability of exemption notification no. 234/86. In any event, the said two questions are interlinked and, therefore, we do not find any merit in the preliminary objection raised on behalf of the appellantOur interpretation is supported by the language of the notification. Under the proviso read with the explanation to the said notification to the said notification, there were three conditions required to be satisfied by way of certification by the Drugs Controller. Firstly, that the bulk drugs should have the same meaning as mentioned in the explanation to the notification. Secondly, that such bulk drugs should be normally used for the specified purposes; and, thirdly, that the bulk drugs are used as such or as an ingredient in any formulation. Plainly read, the third condition has to mean that the goods, for which exemption was sought, were actually used as such or as an ingredient in any formulation. If the arguments advanced on behalf of the appellant in accepted then the second and third condition would have the same meaning and there would be no point in specifying them as separate conditions. In the explanation to the notification, we have two expressions, namely, normally used and used as such. We have to read both these expressions in juxta position. If so read, it becomes clear that the expression used as such in the proviso qualifies the actual use and not the capacity of use. These words as by way of emphasis. They are a condition to be actually satisfied before the exemption can be availed and granted. Consequently, every manufacturer of a bulk drug cannot seek the benefit of exemption under the said notification merely by reason of normal use of the drug. The words normal use indicate the possible use whereas the expression used as such indicates the actual use. The certificates issued by the Drugs Controller, quoted above, shows that they did not deal with uses other than normal uses of such bulk drugs. In the circumstances, the Tribunal was right in holding that the benefit of the exemption was available only to those drugs which went into the stream of diagnosis, treatment etc. and not to the use of any other profit making activity. In the circumstances, on the question of applicability of the notification, we do not find any infirmity in the impugned decision of the Tribunal. In the case of Cosmic Dye Chemical vs. Collector of Central Excise, Bombay reported in 1995(75) ELT 721), this Court held that intention to evade duty must be proved for invoking to section 11A(1) for extended period of limitation. It has been further held that intent to evade duty is built into the expression fraud and collusion but mis-statement and suppression is qualified by the preceding word wilful. Therefore, it is not correct to say that there can be suppression or misstatement of fact, which is not wilful and yet constitutes a permissible ground for invoking the proviso to section 11A25. In case of Pushpam Pharmaceuticals Company vs. Collector of Central Excise, Bombay reported, in (1995 (78) ELT 401 ), this Court has held that the extended period of five years under the proviso to section 11A(1) is not applicable just for any omission on the part of the assessee, unless it is a deliberate attempt to escape from payment of duty. Where facts are known to both the parties, the omission by one to do what he might have done and not that he must have done does not constitute suppression of fact26. Applying the tests in the aforestated judgments to the facts of the present case, we find that the demands raised by the department in the impugned three show-cause notices were time-barred. The first show-cause notice was dated 30.12.1987. It was in respect of period 1.4.1986 to 30.11.1986. The second show cause notice was dated 6.4.1988. Under the said notice, the department has demanded duty for the period 1.3.1984 to 28.2.1986. The last show-cause notice was dated 20.6.1988, for the period 1.4.1986 to 30.4.1987. Therefore, section 11A(1) was not applicable.The question is, whether in the present case, there was any wilful suppression of facts. On facts, as stated above, we find that the appellant had filed a classification list indicating notification no. 234/86 dated 3.4.1986 as well as the chapter under which the goods fell. We have gone through the classification list. It indicates the claim for exemption. The classification list was duly approved by the department. So also monthly returns were filed by the appellant in the form of RT-12 in which there was a complete disclosure regarding the nature of the goods. These returns were regularly assessed by the department. The material placed on record shows filing of gate passes, invoices, classification list. They indicated the names of the consignees. A mere reading of these names would indicate that sorbitol solution was sold to non-pharmaceutical companies like, M/s Golden Tobacco Co. Ltd., Despite such disclosure, the department approved the classification list as well as RT-12 returns. There was no reopening of the approvals and assessments within the stipulated period. In the circumstances, the judicial Member of the Tribunal was right in holding that no case was made out for invoking the extended period of limitation. As stated above, the end use was built in the exemption notification. Therefore, the department could have demanded duty within one year from the relevant date under section 11A(1). However, this was not done. In the absence of evidence of suppression of facts, the J.M. was right in setting aside the show-cause notices. In the case of Jayant Vitamins Limited vs. Union of India reported in (1991) (53) ELT 278 ), show-cause notice-cum-demand was issued by the department alleging non-user of bulk drugs for specified purpose. In that matter, goods were cleared without payment of duty, as in the present case, on the basis of certificate from Drugs Controller. In that case, same notification no. 234/86 was relied upon by the assessee. However, on facts, the High Court found that the assessee had disclosed the relevant facts in the gate passes and, therefore, it was held that the department was not entitled to invoke the proviso to section 11A(1). In our view, the judgment of the Madhya Pradesh High Court in Jayant Vitamins Ltd. (supra), is not on the applicability of the notification no. 234/86, as it is sought to be urged on behalf of the appellant. The said judgment is only on the point of limitation. It only states that the department was not entitled to invoke the proviso to section 11A(1) as the assessee had indicated in the gate passes the material facts. On this point, before concluding, we may mention that in the present case, we have come to the conclusion that there was no wilful suppression of facts on the part of the appellant as the appellant had filed the gate passes, invoices and monthly returns, which were all duty approved by the department from time to time. The invoices, gate passes and the monthly returns indicated the names of the consignees from which it was possible for the department to infer sale of sorbitol solution to non-pharmaceutical companies and yet no steps were taken by the department to raise the demand in time and, therefore, we hold that there was no wilful suppression of material facts for invoking the proviso to section 11A(1). The facts of the present case are not confined only to gate passes clearances. In such cases, it would not be proper to Courts to rely on the evidence furnished only by gate passes29. In the circumstances, although on merits the department succeeds, these appeals need to be allowed as the impugned show-cause notices-cum-demands were time barred and as no case is made out by the department for invocation of the proviso to section 11A(1) of the said Act | 1 | 7,209 | 1,766 | ### 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:
case, we are concerned with the proviso to section 11A(1). 24. In the case of Cosmic Dye Chemical vs. Collector of Central Excise, Bombay reported in 1995(75) ELT 721), this Court held that intention to evade duty must be proved for invoking to section 11A(1) for extended period of limitation. It has been further held that intent to evade duty is built into the expression fraud and collusion but mis-statement and suppression is qualified by the preceding word wilful. Therefore, it is not correct to say that there can be suppression or misstatement of fact, which is not wilful and yet constitutes a permissible ground for invoking the proviso to section 11A. 25. In case of Pushpam Pharmaceuticals Company vs. Collector of Central Excise, Bombay reported, in (1995 (78) ELT 401 ), this Court has held that the extended period of five years under the proviso to section 11A(1) is not applicable just for any omission on the part of the assessee, unless it is a deliberate attempt to escape from payment of duty. Where facts are known to both the parties, the omission by one to do what he might have done and not that he must have done does not constitute suppression of fact. 26. Applying the tests in the aforestated judgments to the facts of the present case, we find that the demands raised by the department in the impugned three show-cause notices were time-barred. The first show-cause notice was dated 30.12.1987. It was in respect of period 1.4.1986 to 30.11.1986. The second show cause notice was dated 6.4.1988. Under the said notice, the department has demanded duty for the period 1.3.1984 to 28.2.1986. The last show-cause notice was dated 20.6.1988, for the period 1.4.1986 to 30.4.1987. Therefore, section 11A(1) was not applicable. 27. The question is, whether in the present case, there was any wilful suppression of facts. On facts, as stated above, we find that the appellant had filed a classification list indicating notification no. 234/86 dated 3.4.1986 as well as the chapter under which the goods fell. We have gone through the classification list. It indicates the claim for exemption. The classification list was duly approved by the department. So also monthly returns were filed by the appellant in the form of RT-12 in which there was a complete disclosure regarding the nature of the goods. These returns were regularly assessed by the department. The material placed on record shows filing of gate passes, invoices, classification list. They indicated the names of the consignees. A mere reading of these names would indicate that sorbitol solution was sold to non-pharmaceutical companies like, M/s Golden Tobacco Co. Ltd., Despite such disclosure, the department approved the classification list as well as RT-12 returns. There was no reopening of the approvals and assessments within the stipulated period. In the circumstances, the judicial Member of the Tribunal was right in holding that no case was made out for invoking the extended period of limitation. As stated above, the end use was built in the exemption notification. Therefore, the department could have demanded duty within one year from the relevant date under section 11A(1). However, this was not done. In the absence of evidence of suppression of facts, the J.M. was right in setting aside the show-cause notices. 28. In the case of Jayant Vitamins Limited vs. Union of India reported in (1991) (53) ELT 278 ), show-cause notice-cum-demand was issued by the department alleging non-user of bulk drugs for specified purpose. In that matter, goods were cleared without payment of duty, as in the present case, on the basis of certificate from Drugs Controller. In that case, same notification no. 234/86 was relied upon by the assessee. However, on facts, the High Court found that the assessee had disclosed the relevant facts in the gate passes and, therefore, it was held that the department was not entitled to invoke the proviso to section 11A(1). In our view, the judgment of the Madhya Pradesh High Court in Jayant Vitamins Ltd. (supra), is not on the applicability of the notification no. 234/86, as it is sought to be urged on behalf of the appellant. The said judgment is only on the point of limitation. It only states that the department was not entitled to invoke the proviso to section 11A(1) as the assessee had indicated in the gate passes the material facts. On this point, before concluding, we may mention that in the present case, we have come to the conclusion that there was no wilful suppression of facts on the part of the appellant as the appellant had filed the gate passes, invoices and monthly returns, which were all duty approved by the department from time to time. The invoices, gate passes and the monthly returns indicated the names of the consignees from which it was possible for the department to infer sale of sorbitol solution to non-pharmaceutical companies and yet no steps were taken by the department to raise the demand in time and, therefore, we hold that there was no wilful suppression of material facts for invoking the proviso to section 11A(1). The facts of the present case are not confined only to gate passes clearances. In such cases, it would not be proper to Courts to rely on the evidence furnished only by gate passes. 29. In the circumstances, although on merits the department succeeds, these appeals need to be allowed as the impugned show-cause notices-cum-demands were time barred and as no case is made out by the department for invocation of the proviso to section 11A(1) of the said Act. 30. Before concluding, we may point out that numerous judgments were cited on behalf of the appellant under the Food Adulteration Act, the Essential Commodities Act and the matters concerning classification dispute. It is not necessary for us to burden this judgment with those cases, particularly, in view of the fact that in the present case, we are concerned with interpretation of an exemption notification. 31.
### Response:
1
### Explanation:
quoted above, shows that they did not deal with uses other than normal uses of such bulk drugs. In the circumstances, the Tribunal was right in holding that the benefit of the exemption was available only to those drugs which went into the stream of diagnosis, treatment etc. and not to the use of any other profit making activity. In the circumstances, on the question of applicability of the notification, we do not find any infirmity in the impugned decision of the Tribunal. In the case of Cosmic Dye Chemical vs. Collector of Central Excise, Bombay reported in 1995(75) ELT 721), this Court held that intention to evade duty must be proved for invoking to section 11A(1) for extended period of limitation. It has been further held that intent to evade duty is built into the expression fraud and collusion but mis-statement and suppression is qualified by the preceding word wilful. Therefore, it is not correct to say that there can be suppression or misstatement of fact, which is not wilful and yet constitutes a permissible ground for invoking the proviso to section 11A25. In case of Pushpam Pharmaceuticals Company vs. Collector of Central Excise, Bombay reported, in (1995 (78) ELT 401 ), this Court has held that the extended period of five years under the proviso to section 11A(1) is not applicable just for any omission on the part of the assessee, unless it is a deliberate attempt to escape from payment of duty. Where facts are known to both the parties, the omission by one to do what he might have done and not that he must have done does not constitute suppression of fact26. Applying the tests in the aforestated judgments to the facts of the present case, we find that the demands raised by the department in the impugned three show-cause notices were time-barred. The first show-cause notice was dated 30.12.1987. It was in respect of period 1.4.1986 to 30.11.1986. The second show cause notice was dated 6.4.1988. Under the said notice, the department has demanded duty for the period 1.3.1984 to 28.2.1986. The last show-cause notice was dated 20.6.1988, for the period 1.4.1986 to 30.4.1987. Therefore, section 11A(1) was not applicable.The question is, whether in the present case, there was any wilful suppression of facts. On facts, as stated above, we find that the appellant had filed a classification list indicating notification no. 234/86 dated 3.4.1986 as well as the chapter under which the goods fell. We have gone through the classification list. It indicates the claim for exemption. The classification list was duly approved by the department. So also monthly returns were filed by the appellant in the form of RT-12 in which there was a complete disclosure regarding the nature of the goods. These returns were regularly assessed by the department. The material placed on record shows filing of gate passes, invoices, classification list. They indicated the names of the consignees. A mere reading of these names would indicate that sorbitol solution was sold to non-pharmaceutical companies like, M/s Golden Tobacco Co. Ltd., Despite such disclosure, the department approved the classification list as well as RT-12 returns. There was no reopening of the approvals and assessments within the stipulated period. In the circumstances, the judicial Member of the Tribunal was right in holding that no case was made out for invoking the extended period of limitation. As stated above, the end use was built in the exemption notification. Therefore, the department could have demanded duty within one year from the relevant date under section 11A(1). However, this was not done. In the absence of evidence of suppression of facts, the J.M. was right in setting aside the show-cause notices. In the case of Jayant Vitamins Limited vs. Union of India reported in (1991) (53) ELT 278 ), show-cause notice-cum-demand was issued by the department alleging non-user of bulk drugs for specified purpose. In that matter, goods were cleared without payment of duty, as in the present case, on the basis of certificate from Drugs Controller. In that case, same notification no. 234/86 was relied upon by the assessee. However, on facts, the High Court found that the assessee had disclosed the relevant facts in the gate passes and, therefore, it was held that the department was not entitled to invoke the proviso to section 11A(1). In our view, the judgment of the Madhya Pradesh High Court in Jayant Vitamins Ltd. (supra), is not on the applicability of the notification no. 234/86, as it is sought to be urged on behalf of the appellant. The said judgment is only on the point of limitation. It only states that the department was not entitled to invoke the proviso to section 11A(1) as the assessee had indicated in the gate passes the material facts. On this point, before concluding, we may mention that in the present case, we have come to the conclusion that there was no wilful suppression of facts on the part of the appellant as the appellant had filed the gate passes, invoices and monthly returns, which were all duty approved by the department from time to time. The invoices, gate passes and the monthly returns indicated the names of the consignees from which it was possible for the department to infer sale of sorbitol solution to non-pharmaceutical companies and yet no steps were taken by the department to raise the demand in time and, therefore, we hold that there was no wilful suppression of material facts for invoking the proviso to section 11A(1). The facts of the present case are not confined only to gate passes clearances. In such cases, it would not be proper to Courts to rely on the evidence furnished only by gate passes29. In the circumstances, although on merits the department succeeds, these appeals need to be allowed as the impugned show-cause notices-cum-demands were time barred and as no case is made out by the department for invocation of the proviso to section 11A(1) of the said Act
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T.N. STATE TRANSPORT CORPN. LTD Vs. COLLECTOR OF C. EX., MADURAI | 1. This Appeal is against the Judgment dated 5th March, 1998 passed by the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as CEGAT). 2. Briefly stated the facts are as follows : The Appellants are manufacturers of bodies of Buses. During inspection by the Officers of the Respondent, it was noticed that the Appellants were also manufacturing Aluminium Paint and applying it on the bodies of the Buses. In respect of this Aluminium Paint the Appellants had made no declarations nor paid any duly. A show cause notice was therefore issued to them. On 20th November, 1991 an Order levying duty was passed by the Additional Collector. The Appellants filed an Appeal to CEGAT which has been dismissed by the impugned Judgment. 3. It is submitted that there is no manufacture and thus there can be no levy of duty. It was submitted that the Appellants only mix Aluminium paste, metal lacquer and thinner which process does not amount to manufacture. It was submitted that since the shelf life of the Aluminium Paint was very short the same would not be marketable and could not be bought or sold in the market. 4. We see no substance in these submissions. After the aluminium paste, metal lacquer and thinner are mixed in exact proportions, a separate and distinct product with a distinct identity comes into existence. It is a Paint which is known in the market as Aluminium Paint. We see no substance in the submission that it is not marketable because it has a very short shelf life. As per the statement given by the Manager and the Managing Director of the Appellants Company the product has a shelf life of 8 to 10 hours. This is enough to market it. Even otherwise, the Department has produced from the market stickers pasted on Aluminium Paint tins sold in the market. Further, at the time of hearing before the Additional Collector the counsel for the Appellants produced a box of Aluminium Paint manufactured by ICI Limited. This showed that the Appellants had got the product from the market. That the product could be purchased in the market is also clear from the statement of the Managing Director of the Appellants, dated 1st June, 1989, wherein he has inter alia stated that the Appellants have since stopped making the product and started purchasing Aluminum Paint from the market. When asked whether there was any difference between the product which they purchased from the market and the mixtures which they used to manufacture, the answer was that he could not say. 5. On the above facts both the authorities below were right in holding that a distinct product had come into existence and that it was a marketable. 6. It was next urged that the extended period of limitation could not have been invoked. We find no substance in the submission. It is clear that the Appellants had not disclosed to the Department that they were manufacturing this product. They maintained no account and paid no duty. It is only after inspection that it was found that this product was being manufactured. Therefore, both the authorities have correctly held that the extended period of limitation could be invoked. | 0[ds]4. We see no substance in these submissions. After the aluminium paste, metal lacquer and thinner are mixed in exact proportions, a separate and distinct product with a distinct identity comes into existence. It is a Paint which is known in the market as Aluminium Paint. We see no substance in the submission that it is not marketable because it has a very short shelf life. As per the statement given by the Manager and the Managing Director of the Appellants Company the product has a shelf life of 8 to 10 hours. This is enough to market it. Even otherwise, the Department has produced from the market stickers pasted on Aluminium Paint tins sold in the market. Further, at the time of hearing before the Additional Collector the counsel for the Appellants produced a box of Aluminium Paint manufactured by ICI Limited. This showed that the Appellants had got the product from the market. That the product could be purchased in the market is also clear from the statement of the Managing Director of the Appellants, dated 1st June, 1989, wherein he has inter alia stated that the Appellants have since stopped making the product and started purchasing Aluminum Paint from the market. When asked whether there was any difference between the product which they purchased from the market and the mixtures which they used to manufacture, the answer was that he could not say.5. On the above facts both the authorities below were right in holding that a distinct product had come into existence and that it was a marketable.We find no substance in the submission. It is clear that the Appellants had not disclosed to the Department that they were manufacturing this product. They maintained no account and paid no duty. It is only after inspection that it was found that this product was being manufactured. Therefore, both the authorities have correctly held that the extended period of limitation could be invoked. | 0 | 590 | 355 | ### 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:
1. This Appeal is against the Judgment dated 5th March, 1998 passed by the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as CEGAT). 2. Briefly stated the facts are as follows : The Appellants are manufacturers of bodies of Buses. During inspection by the Officers of the Respondent, it was noticed that the Appellants were also manufacturing Aluminium Paint and applying it on the bodies of the Buses. In respect of this Aluminium Paint the Appellants had made no declarations nor paid any duly. A show cause notice was therefore issued to them. On 20th November, 1991 an Order levying duty was passed by the Additional Collector. The Appellants filed an Appeal to CEGAT which has been dismissed by the impugned Judgment. 3. It is submitted that there is no manufacture and thus there can be no levy of duty. It was submitted that the Appellants only mix Aluminium paste, metal lacquer and thinner which process does not amount to manufacture. It was submitted that since the shelf life of the Aluminium Paint was very short the same would not be marketable and could not be bought or sold in the market. 4. We see no substance in these submissions. After the aluminium paste, metal lacquer and thinner are mixed in exact proportions, a separate and distinct product with a distinct identity comes into existence. It is a Paint which is known in the market as Aluminium Paint. We see no substance in the submission that it is not marketable because it has a very short shelf life. As per the statement given by the Manager and the Managing Director of the Appellants Company the product has a shelf life of 8 to 10 hours. This is enough to market it. Even otherwise, the Department has produced from the market stickers pasted on Aluminium Paint tins sold in the market. Further, at the time of hearing before the Additional Collector the counsel for the Appellants produced a box of Aluminium Paint manufactured by ICI Limited. This showed that the Appellants had got the product from the market. That the product could be purchased in the market is also clear from the statement of the Managing Director of the Appellants, dated 1st June, 1989, wherein he has inter alia stated that the Appellants have since stopped making the product and started purchasing Aluminum Paint from the market. When asked whether there was any difference between the product which they purchased from the market and the mixtures which they used to manufacture, the answer was that he could not say. 5. On the above facts both the authorities below were right in holding that a distinct product had come into existence and that it was a marketable. 6. It was next urged that the extended period of limitation could not have been invoked. We find no substance in the submission. It is clear that the Appellants had not disclosed to the Department that they were manufacturing this product. They maintained no account and paid no duty. It is only after inspection that it was found that this product was being manufactured. Therefore, both the authorities have correctly held that the extended period of limitation could be invoked.
### Response:
0
### Explanation:
4. We see no substance in these submissions. After the aluminium paste, metal lacquer and thinner are mixed in exact proportions, a separate and distinct product with a distinct identity comes into existence. It is a Paint which is known in the market as Aluminium Paint. We see no substance in the submission that it is not marketable because it has a very short shelf life. As per the statement given by the Manager and the Managing Director of the Appellants Company the product has a shelf life of 8 to 10 hours. This is enough to market it. Even otherwise, the Department has produced from the market stickers pasted on Aluminium Paint tins sold in the market. Further, at the time of hearing before the Additional Collector the counsel for the Appellants produced a box of Aluminium Paint manufactured by ICI Limited. This showed that the Appellants had got the product from the market. That the product could be purchased in the market is also clear from the statement of the Managing Director of the Appellants, dated 1st June, 1989, wherein he has inter alia stated that the Appellants have since stopped making the product and started purchasing Aluminum Paint from the market. When asked whether there was any difference between the product which they purchased from the market and the mixtures which they used to manufacture, the answer was that he could not say.5. On the above facts both the authorities below were right in holding that a distinct product had come into existence and that it was a marketable.We find no substance in the submission. It is clear that the Appellants had not disclosed to the Department that they were manufacturing this product. They maintained no account and paid no duty. It is only after inspection that it was found that this product was being manufactured. Therefore, both the authorities have correctly held that the extended period of limitation could be invoked.
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Nagji Vallabhji & Company Vs. Meghji Vijpar & Companymeghji Vijpar (Deceased)Through His | Dr Chitale this immunity would be rendered practically nugatory. In fact, a plain reading of the provisions of sub-section (4)(a) in the context clearly shows that there is no intention therein to take out a building put up by the government or a local authority from the scope of the exemption conferred by sub-section (1) of Section 4. In fact, the language of sub-section (4)(a) and sub-section (1) of Section 4 of the Bombay Rent Act read together suggests that it was only in respect of a building put up by the lessee on the government land or land belonging to a local authority under a building agreement that the sub-lessees were taken out of the exemption contained in sub-section (1) of Section 4 and allowed the benefit of the provisions of the Bombay Rent Act. It is significant that the exemption granted under the earlier part of sub-section (1) of Section 4 is in respect of the premises and not in respect of the relationship. In order to confer the protection of the provisions of the Bombay Rent Act to the sub-lessees occupying the premises in any building erected on government land or on land belonging to a local authority irrespective of the question who has put up the building as against the lessees of the land but without affecting the immunity conferred to the government or local authorities as contemplated by sub-section (1) of Section 4 of the Bombay Rent Act, we would have practically rewritten the provisions of Section 4 and it is not open to us to do that. We are, therefore, unable to accept the argument of Dr Chitale and we are of the view that the learned Judge of the High Court of Bombay was right in coming to the conclusion that the premises in question were not entitled to the benefit of the provisions of the Bombay Rent Act. 10. Before parting with the matter we may take note of some of the other decisions cited before us. 11. In Kanji Manji v. Trustees of the Port of Bombay [1962 Supp 3 SCR 461 : AIR 1963 SC 468 ] this Court took the view that if the government or a local authority wants to evict a person from land belonging to the government or a local authority, the provisions of the Bombay Rent Act do not come in the way. For the same reason, the suit for ejectment does not have to be filed in the court of small causes as required by the Rent Control Act but in the city civil court. If the original lessees took on lease not only the land but also the building, it is not open to their assignees to claim that the ownership of the government extended only to the land and not to the buildings. This decision is of no assistance to the case before us. 12. In Maneklal and Sons v. Trustees of Port of Bombay [(1987) 4 SCC 733] the facts, very briefly stated, were that respondent 1 being the Trustees for the Port of Bombay were the owners of a plot of land situated in Bombay. In 1945, the trustees granted lease of the said plot of land to one Mustafa Husein for the purpose of erecting a godown for carrying on commercial activities. The godown was erected by Mustafa Husein in 1946 and in 1958 he granted a lease of the said godown to the petitioners in that case. The Trustees of the Port of Bombay filed a suit against Mustafa Husein for eviction. The lease granted to Mustafa Husein stood terminated. The ground of eviction was the termination of tenancy. The Trustees obtained a decree against the heirs of Mustafa Husein. A warrant of possession in execution of decree was sought to be executed against the petitioners. The petitioners obstructed the execution of the decree. Thereupon, the Trustees took out a chamber summons in the High Court of Bombay for removal of obstruction. The petitioners contended that they were the lessees under the said Mustafa Husein and were entitled to the protection of the Bombay Rent Act. This Court pointed out that the word "premises" in sub-section (1) could mean the land or the buildings or both. Sub-section (4)(a) of the Bombay Rent Act dealt only with the buildings and did not deal with the land because it used the word "buildings" and not the more general word "premises". The import of sub-section (4)(a) of Section 4 was thus limited to buildings and did not extend to land. The sub-section, however, was drafted somewhat inartistically and the obscurity of the language resulted in some difficulty. After considering the decision of the Bombay High Court in Ram Bhagwandas v. Municipal Corporation of the City of Bombay [AIR 1956 Bom 364 ] this Court pointed out that as observed by Chagla, C. J., in the case of Ram Bhagwandas [AIR 1956 Bom 364 ] by enacting sub-section (4)(a) of Section 4 of the Bombay Rent Act the legislature was seeking to protect by that sub-section tenants who occupied buildings put up upon land belonging to a local authority if the buildings occupied by them were constructed under an agreement under which the lessee was under an obligation to construct buildings. The protection of sub-section (4)(a) was to buildings and not to lands and the phrase "under agreement, lease or other grant" modified not only the expression "held by any person from the government or a local authority" but also "erected on any land". This Court pointed out that this was the view taken by this Court in Kanji Manji case [1962 Supp 3 SCR 461 : AIR 1963 SC 468 ] cited earlier. On the basis of this conclusion, this Court dismissed the special leave petition filed by the petitioner. This decision far from supporting the submission of Dr Chitale, militates against it. 13. In the result, we find that there is no merit in the appeal and it must fail. | 0[ds]9. It was urged before us by Dr Chitale that, if the sub-lessee in a building put up by a lessee on land leased from the government or a local authority under a building lease is entitled to the protection of the Bombay Rent Act under the provisions of Section 4(4)(a) thereof, there is no reason why such protection should be denied to a sub-lessee in any building belonging to the government or a local authority and taken on lease by a private party regardless of the question as to who has put up theare, therefore, unable to accept the argument of Dr Chitale and we are of the view that the learned Judge of the High Court of Bombay was right in coming to the conclusion that the premises in question were not entitled to the benefit of the provisions of the Bombay Rentconsidering the decision of the Bombay High Court in Ram Bhagwandas v. Municipal Corporation of the City of Bombay [AIR 1956 Bom 364 ] this Court pointed out that as observed by Chagla, C. J., in the case of Ram Bhagwandas [AIR 1956 Bom 364 ] by enacting sub-section(4)(a) of Section 4 of the BombayRent Act the legislature was seeking to protect by that sub-section tenants who occupied buildings put up upon land belonging to a local authority if the buildings occupied by them were constructed under an agreement under which the lessee was under an obligation to construct buildings. The protection of sub-section (4)(a) was to buildings and not to lands and the phrase "under agreement, lease or other grant" modified not only the expression "held by any person from the government or a local authority" but also "erected on any land". This Court pointed out that this was the view taken by this Court in Kanji Manji case [1962 Supp 3 SCR 461 : AIR 1963 SC 468 ] cited earlier. On the basis of this conclusion, this Court dismissed the special leave petition filed by the petitioner. This decision far from supporting the submission of Dr Chitale, militates againstIn the result, we find that there is no merit in the appeal and it must fail. | 0 | 3,806 | 408 | ### 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:
Dr Chitale this immunity would be rendered practically nugatory. In fact, a plain reading of the provisions of sub-section (4)(a) in the context clearly shows that there is no intention therein to take out a building put up by the government or a local authority from the scope of the exemption conferred by sub-section (1) of Section 4. In fact, the language of sub-section (4)(a) and sub-section (1) of Section 4 of the Bombay Rent Act read together suggests that it was only in respect of a building put up by the lessee on the government land or land belonging to a local authority under a building agreement that the sub-lessees were taken out of the exemption contained in sub-section (1) of Section 4 and allowed the benefit of the provisions of the Bombay Rent Act. It is significant that the exemption granted under the earlier part of sub-section (1) of Section 4 is in respect of the premises and not in respect of the relationship. In order to confer the protection of the provisions of the Bombay Rent Act to the sub-lessees occupying the premises in any building erected on government land or on land belonging to a local authority irrespective of the question who has put up the building as against the lessees of the land but without affecting the immunity conferred to the government or local authorities as contemplated by sub-section (1) of Section 4 of the Bombay Rent Act, we would have practically rewritten the provisions of Section 4 and it is not open to us to do that. We are, therefore, unable to accept the argument of Dr Chitale and we are of the view that the learned Judge of the High Court of Bombay was right in coming to the conclusion that the premises in question were not entitled to the benefit of the provisions of the Bombay Rent Act. 10. Before parting with the matter we may take note of some of the other decisions cited before us. 11. In Kanji Manji v. Trustees of the Port of Bombay [1962 Supp 3 SCR 461 : AIR 1963 SC 468 ] this Court took the view that if the government or a local authority wants to evict a person from land belonging to the government or a local authority, the provisions of the Bombay Rent Act do not come in the way. For the same reason, the suit for ejectment does not have to be filed in the court of small causes as required by the Rent Control Act but in the city civil court. If the original lessees took on lease not only the land but also the building, it is not open to their assignees to claim that the ownership of the government extended only to the land and not to the buildings. This decision is of no assistance to the case before us. 12. In Maneklal and Sons v. Trustees of Port of Bombay [(1987) 4 SCC 733] the facts, very briefly stated, were that respondent 1 being the Trustees for the Port of Bombay were the owners of a plot of land situated in Bombay. In 1945, the trustees granted lease of the said plot of land to one Mustafa Husein for the purpose of erecting a godown for carrying on commercial activities. The godown was erected by Mustafa Husein in 1946 and in 1958 he granted a lease of the said godown to the petitioners in that case. The Trustees of the Port of Bombay filed a suit against Mustafa Husein for eviction. The lease granted to Mustafa Husein stood terminated. The ground of eviction was the termination of tenancy. The Trustees obtained a decree against the heirs of Mustafa Husein. A warrant of possession in execution of decree was sought to be executed against the petitioners. The petitioners obstructed the execution of the decree. Thereupon, the Trustees took out a chamber summons in the High Court of Bombay for removal of obstruction. The petitioners contended that they were the lessees under the said Mustafa Husein and were entitled to the protection of the Bombay Rent Act. This Court pointed out that the word "premises" in sub-section (1) could mean the land or the buildings or both. Sub-section (4)(a) of the Bombay Rent Act dealt only with the buildings and did not deal with the land because it used the word "buildings" and not the more general word "premises". The import of sub-section (4)(a) of Section 4 was thus limited to buildings and did not extend to land. The sub-section, however, was drafted somewhat inartistically and the obscurity of the language resulted in some difficulty. After considering the decision of the Bombay High Court in Ram Bhagwandas v. Municipal Corporation of the City of Bombay [AIR 1956 Bom 364 ] this Court pointed out that as observed by Chagla, C. J., in the case of Ram Bhagwandas [AIR 1956 Bom 364 ] by enacting sub-section (4)(a) of Section 4 of the Bombay Rent Act the legislature was seeking to protect by that sub-section tenants who occupied buildings put up upon land belonging to a local authority if the buildings occupied by them were constructed under an agreement under which the lessee was under an obligation to construct buildings. The protection of sub-section (4)(a) was to buildings and not to lands and the phrase "under agreement, lease or other grant" modified not only the expression "held by any person from the government or a local authority" but also "erected on any land". This Court pointed out that this was the view taken by this Court in Kanji Manji case [1962 Supp 3 SCR 461 : AIR 1963 SC 468 ] cited earlier. On the basis of this conclusion, this Court dismissed the special leave petition filed by the petitioner. This decision far from supporting the submission of Dr Chitale, militates against it. 13. In the result, we find that there is no merit in the appeal and it must fail.
### Response:
0
### Explanation:
9. It was urged before us by Dr Chitale that, if the sub-lessee in a building put up by a lessee on land leased from the government or a local authority under a building lease is entitled to the protection of the Bombay Rent Act under the provisions of Section 4(4)(a) thereof, there is no reason why such protection should be denied to a sub-lessee in any building belonging to the government or a local authority and taken on lease by a private party regardless of the question as to who has put up theare, therefore, unable to accept the argument of Dr Chitale and we are of the view that the learned Judge of the High Court of Bombay was right in coming to the conclusion that the premises in question were not entitled to the benefit of the provisions of the Bombay Rentconsidering the decision of the Bombay High Court in Ram Bhagwandas v. Municipal Corporation of the City of Bombay [AIR 1956 Bom 364 ] this Court pointed out that as observed by Chagla, C. J., in the case of Ram Bhagwandas [AIR 1956 Bom 364 ] by enacting sub-section(4)(a) of Section 4 of the BombayRent Act the legislature was seeking to protect by that sub-section tenants who occupied buildings put up upon land belonging to a local authority if the buildings occupied by them were constructed under an agreement under which the lessee was under an obligation to construct buildings. The protection of sub-section (4)(a) was to buildings and not to lands and the phrase "under agreement, lease or other grant" modified not only the expression "held by any person from the government or a local authority" but also "erected on any land". This Court pointed out that this was the view taken by this Court in Kanji Manji case [1962 Supp 3 SCR 461 : AIR 1963 SC 468 ] cited earlier. On the basis of this conclusion, this Court dismissed the special leave petition filed by the petitioner. This decision far from supporting the submission of Dr Chitale, militates againstIn the result, we find that there is no merit in the appeal and it must fail.
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S. S. Munna Lal Vs. S. S. Rajkumar And Others | the estate was merely inchoate, for she had a mere right to be maintained out of the estate and that her right continued to retain that character till actual division was made and the share declared by the preliminary decree was separated and delivered to her : on her death before actual division the inchoate interest again reverted to the estate out of which it was carved. Counsel relied upon the judgment of the Judicial Committee in Pratapmull Agarwalla v. Dhanbati Bibi, 63 Ind App 33 : (AIR 1936 PC 20 ) in support of his plea that under the Mitakshara law, when the family estate is divided a wife or mother is entitled to a share, but is not recognised as the owner of such share until the division of the property is actually made, as she has no pre-existing right in the estate except a right of maintenance, Counsel submitted that this rule of Hindu law was not affected by anything contained in S. 14 of the Hindu Succession Act.16. By S. 14(1) the Legislature sought to convert the interest of a Hindu female which under the Sastric Hindu law would have been regarded as a limited interest into an absolute interest and by the Explanation thereto gave to the expression "property" the widest connotation. The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. By S. 14(l) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu law may be into absolute estate. Pratapmulls case, 63 Ind App 33: (AIR 1936 PC 20 ) undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment, and has made far reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by her at the time of her death. It is true that under the Sastric Hindu Law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Womens Right to property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting S.14 of the Hindu Succession Act, the Legislature merely intended to declare the rule enunciated by the Privy Council in Pratapmulls case, 63 Ind App 33: (AIR 1936 PC 20 ). Section 4 of the Act gives an overriding effect to the provisions of the Act. It enacts :"Save as otherwise expressly provided in this Act,(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act :(b) .. . . . .. . . . . .. .. . .. . . . . ....."Manifestly, the Legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act. Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which S. 14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of S. 14. In the light of the scheme of the Act and its avowed purpose it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regard as property the right declared in favour of a Hindu female must also be regarded as property. The High Court was therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Rajkumar that it was not property within the meaning of S. 14 of the Act.17. On that view of the case, by virtue of Ss. 15 and 16 of the Act the interest declared in favour of Khilonabai devolved upon her sons Munnalal and Ramchand to the exclusion of her grandson Rajkumar. The decree passed by the High Court is therefore modified in this respect and the decree passed by the trial Court restored. | 1[ds]16. By S. 14(1) the Legislature sought to convert the interest of a Hindu female which under the Sastric Hindu law would have been regarded as a limited interest into an absolute interest and by the Explanation thereto gave to the expression "property" the widest connotation. The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. By S. 14(l) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu law may be into absolute estate. Pratapmulls case, 63 Ind App 33: (AIR 1936 PC 20 ) undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment, and has made far reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by her at the time of her death. It is true that under the Sastric Hindu Law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Womens Right to property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting S.14 of the Hindu Succession Act, the Legislature merely intended to declare the rule enunciated by the Privy Council in Pratapmulls case, 63 Ind App 33: (AIR 1936 PC 20 ). Section 4 of the Act gives an overriding effect to the provisions of thethe Legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act. Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which S. 14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of S. 14. In the light of the scheme of the Act and its avowed purpose it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regard as property the right declared in favour of a Hindu female must also be regarded as property. The High Court was therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Rajkumar that it was not property within the meaning of S. 14 of the Act.17. On that view of the case, by virtue of Ss. 15 and 16 of the Act the interest declared in favour of Khilonabai devolved upon her sons Munnalal and Ramchand to the exclusion of her grandson Rajkumar. The decree passed by the High Court is therefore modified in this respect and the decree passed by the trial Court restored. | 1 | 5,182 | 819 | ### Instruction:
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the estate was merely inchoate, for she had a mere right to be maintained out of the estate and that her right continued to retain that character till actual division was made and the share declared by the preliminary decree was separated and delivered to her : on her death before actual division the inchoate interest again reverted to the estate out of which it was carved. Counsel relied upon the judgment of the Judicial Committee in Pratapmull Agarwalla v. Dhanbati Bibi, 63 Ind App 33 : (AIR 1936 PC 20 ) in support of his plea that under the Mitakshara law, when the family estate is divided a wife or mother is entitled to a share, but is not recognised as the owner of such share until the division of the property is actually made, as she has no pre-existing right in the estate except a right of maintenance, Counsel submitted that this rule of Hindu law was not affected by anything contained in S. 14 of the Hindu Succession Act.16. By S. 14(1) the Legislature sought to convert the interest of a Hindu female which under the Sastric Hindu law would have been regarded as a limited interest into an absolute interest and by the Explanation thereto gave to the expression "property" the widest connotation. The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. By S. 14(l) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu law may be into absolute estate. Pratapmulls case, 63 Ind App 33: (AIR 1936 PC 20 ) undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment, and has made far reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by her at the time of her death. It is true that under the Sastric Hindu Law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Womens Right to property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting S.14 of the Hindu Succession Act, the Legislature merely intended to declare the rule enunciated by the Privy Council in Pratapmulls case, 63 Ind App 33: (AIR 1936 PC 20 ). Section 4 of the Act gives an overriding effect to the provisions of the Act. It enacts :"Save as otherwise expressly provided in this Act,(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act :(b) .. . . . .. . . . . .. .. . .. . . . . ....."Manifestly, the Legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act. Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which S. 14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of S. 14. In the light of the scheme of the Act and its avowed purpose it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regard as property the right declared in favour of a Hindu female must also be regarded as property. The High Court was therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Rajkumar that it was not property within the meaning of S. 14 of the Act.17. On that view of the case, by virtue of Ss. 15 and 16 of the Act the interest declared in favour of Khilonabai devolved upon her sons Munnalal and Ramchand to the exclusion of her grandson Rajkumar. The decree passed by the High Court is therefore modified in this respect and the decree passed by the trial Court restored.
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16. By S. 14(1) the Legislature sought to convert the interest of a Hindu female which under the Sastric Hindu law would have been regarded as a limited interest into an absolute interest and by the Explanation thereto gave to the expression "property" the widest connotation. The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. By S. 14(l) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu law may be into absolute estate. Pratapmulls case, 63 Ind App 33: (AIR 1936 PC 20 ) undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognised as owner, but that rule cannot in our judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment, and has made far reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by her at the time of her death. It is true that under the Sastric Hindu Law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Womens Right to property Act, 1937 made a significant departure in that branch of the law; the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting S.14 of the Hindu Succession Act, the Legislature merely intended to declare the rule enunciated by the Privy Council in Pratapmulls case, 63 Ind App 33: (AIR 1936 PC 20 ). Section 4 of the Act gives an overriding effect to the provisions of thethe Legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act. Normally a right declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which S. 14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of S. 14. In the light of the scheme of the Act and its avowed purpose it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regard as property the right declared in favour of a Hindu female must also be regarded as property. The High Court was therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Rajkumar that it was not property within the meaning of S. 14 of the Act.17. On that view of the case, by virtue of Ss. 15 and 16 of the Act the interest declared in favour of Khilonabai devolved upon her sons Munnalal and Ramchand to the exclusion of her grandson Rajkumar. The decree passed by the High Court is therefore modified in this respect and the decree passed by the trial Court restored.
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Jayantbhai Manubhai Patel and Others Vs. Arun Subodhbhai Mehta and Others | Clauses Act, which we have already referred to. That section fortifies the view taken by the Division Bench. 17. We may nor refer to the decision of the Allahabad High Court in R. K. Jain v. Bar Council of U. P. (AIR 1974 All 211 ) In that case, the Bar Council of U.P. in exercise of its power under Section 15(2) of the Advocates Act, 1961, framed rules which regulate the manner and procedure of holding the election of the members to the Bar Council. These rule are known as Bar Council of Uttar Pradesh Election Rules, 1968. Rule 4 lays down that the election of members to the Bar Council shall be held at such place or places, on such date or dates, and during such hour or hours as the Council may appoint. Rule 6 provides that notice of the time and place of election shall be given by publication in the manner prescribed under the rules. The learned Single Judges (K. N. Singh, J., as he then was) who decided the case held that the principles laid down in Section 21 of the General Clauses Act are fully applicable in construing Rules 4 and 6 of the said Election Rules, 1968. On the facts of the case it was held that the Bar Council had the full jurisdiction to change the date of an election and to postpone the election or to fix dates for holding the election afresh till the elections were completed. 18. In our view, the learned Judges of the Gujarat High Court who delivered the judgment under consideration before us need not have considered themselves bound by the aforesaid observations in Chandrakant Khaire case ((1988) 4 SCC 577 : AIR 1988 SC 1665 ), as they have done. In the first place, these observations do not constitute the ratio of the judgment in that case. The question in that case was whether a meeting which was duly convened and had commenced could have been adjourned by the Municipal Commissioner and not whether a notice convening a meeting issued by the Municipal Corporation could be cancelled by him before the commencement of the meeting with a view to have the meeting held on a subsequent date. We are of the view that the Division Bench was not really called upon to consider the situation in such a case, as we have pointed out earlier. Moreover, it appears that the Division Bench has not taken into account the provisions of Section 21 of the Bombay General Clauses Act or the principles underlying that section. No argument was advanced before the Division Bench on the basis of that section at all. The attention of the Division Bench was not drawn to the judgment of this Court in Mohd. Yunus Saleem case ((1974) 4 SCC 854 : AIR 1974 SC 1218 : (1974) 3 SCR 738 ). Had that been done, we feel that the Division Bench which decided that Chandrakant Khaire case (1988) 4 SCC 577 : AIR 1988 SC 1665 ), might not have made the aforestated observations at all. In our view, the principles underlying Section 21 of the Bombay General Clauses Act would be clearly applicable in considering the scope of the powers of the Mayor of a Municipal Corporation set out in clause 1 of Chapter II of the said Schedule in the said Act and in particular, in sub-clause (c) of the said clause. We may point out that the rules in the Schedule have been framed under the statutory provisions of the said Act and Section 453 of the said Act provides that the rules in the schedule as amended from time to time shall be deemed to be part of that Act. In our view, the power of the Mayor conferred under clause 1 of Chapter II of the said Schedule must be regarded as a statutory power as distinguished from the powers of directors of a company which are derived strictly from the Articles of Association of the Company which are contractual in nature. There appears to be no reason to take the view that the principles underlying Section 21 of the Bombay General Clauses Act would not apply to the said powers of the Mayor. In our view, appellant 1, the Mayor of respondent 5, Corporation, had the power to cancel the notice convening the meeting before the commencement of the meeting with a view to convene the meeting on later date. The questions, however, whether he has exercised the power within its true ambit is a different question altogether. In this regard, in our opinion, although the Mayor had to power to cancel the notice convening the meeting and to direct the secretary to issue a notice to that effect, the said power could be exercised only bona fide and for a purpose or purposes within the scope of the said Act. If the power was exercised mala fide or for a collateral purpose, the exercise of the power would certainly be bad. In the present case, there is considerable factual controversy as to whether, even on the footing that appellant 1 had the power to cancel the notice convening the meeting that power was exercised bona fide for a purpose within the scope of the said Act or whether it was exercised for collateral or impermissible purposes. We remand the matter to the Gujarat High Court for the determination of that question. In view of the urgency of the matter, we would request the Gujarat High Court to dispose of the writ petition latest by April 30, 1989 as far as possible. The interim order granted by this Court on November 16, 1988 shall continue up to May 5, 1989, subject to any orders which may be passed hereafter by the Gujarat High Court. From that date, it will be for the parties to apply for appropriate interim orders to the Gujarat High Court till the case is finally disposed of by that court. | 1[ds]11. It is clear from the judgment of the Division Bench of the Gujarat High Court the correctness of which is challenged before us that the Division Bench considered itself itself bound by the observations in Chandrakant Khaire case ((1988) 4 SCC 577 : AIR 1988 SC 1665 ) set out by us earlier. The facts of that case that the first meeting of the Municipal Corporation of Aurangabad after elections was held on May 6, 1988 at 2.00 p.m. as scheduled. The Municipal Commissioner presided over the said meeting. At the said meeting, not only the councillors but many outsiders were also present in the hall when the meeting was being held. There were also a large number of supporters of the rival parties, spectators and journalists. The Municipal Commissioner was surrounded by some 20-25 persons apart from the councillors belonging to the rival parties, one group, comprising of the supporters of Shiv Sena, insisted upon the meeting being adjourned for the day while the other group consisting of the supporters of the Congress (I) party demanded that the meeting should be continued. There was total confusion inside the hall. The Municipal Commissioner informed the Collector, who was present in the hall, that he could not hold the meeting in the unruly and disorderly situation prevailing and complained that his repeated requests to the councillors to maintain peace, had no effect and they kept on shouting, raising slogans and fighting amongst themselves. The Commissioner announced that the polling for the offices of Mayor, Deputy Mayor and Members of the Standing Committee would commence from 2.30 p.m. onwards. Some members belonging to Shiv Sena Party sat on the ballot boxes and others belonging to that party and its supporters surrounded the Municipal Commissioner demanding the meeting be adjourned to a subsequent date. Thereupon, the councillors belonging to a Party-in-Power, namely, Congress (I), started shouting at him that the meeting should be held later on that day. This was followed by shouting of slogans, hurling of abuses and thumping of tables and even throwing of chairs. It appears that the Superintendent of Police and the Collector asked the outsiders to clear out of the hall and requested the councillors to take their places to enable the Municipal Commissioner to transact the business for the day and brought the situation under control. The affidavit filed by the said officers, namely, the Superintendent of Police and the Collector, showed that the atmosphere then claimed down and the order was restored and they left the hall. It was there after that the Municipal Commissioner announced on the mike that the meeting would continue and the elections would be held at 4.30 p. m. It was at this election, that respondents 1 and 2, namely, Dr. Shantaram Kale and Takiqui Hassan, were declared elected as Mayor and Deputy Mayor respectively. This election was challenged in court and it is in the context of these facts that the observations set out earlier were made. The contention of the appellant was that the meeting was adjourned for the day or some die by the Municipal Commissioner and hence the holding of the adjourned meeting later on the same day without fresh notice was bad in law14. It seems that the passage in the judgment in Chandrakant Khaire case ((1988) 4 SCC 577 : AIR 1988 SC 1665 ) which has been strongly relied upon by respondent 1 has been taken substantially from the observations at page 156 in Shackleton on the Law and Practice of Meetings, Seventh Edition. Shackleton has based those observations on the decision of a single case, namely, Smith v. Paringa Mines Ltd. ((1906) 2 Ch 193) In that case, a company had two directors and there was disagreement among them regarding the appointment of an additional director. The aggrieved director commenced an action and after this a notice was issued postponing a general meeting already called but, in the belief that the attempted postponement was illegal, the aggrieved director advertised the meeting in the press for the same day as previously arranged. On that day, he with certain other shareholders attended the meeting and at that meeting resolutions were approved re-electing himself as a director and refusing to re-appoint the other director. It was held that the resolutions were valid, for, in the absence of express authority in the articles, the directors of a company have no power to postpone a general meeting properly convened. It appears, therefore, that these observations are based on a decision which dealt with the powers of the directors of a company which are derived from the articles of association of the company which essentially are in the nature of a compact or an agreement. The only powers which the directors of a company have, are such as have been conferred upon them by articles of association of the company. The powers of the Mayor of the Corporation, on the other hand, are statutory in nature and they are derived from the Bombay Municipal Corporation Act. As set out by us earlier, sub-section (1) of Section 19 of the said Act provides for the election of a Mayor of a Municipal Corporation. The Mayor has various powers conferred under the said Act. Sub-clause (c) of clause 1 in Chapter II of the said Schedule in the Municipal Corporation Act provides that except for the first meeting for a new Corporation which has been duly elected, the time, day and place of meeting shall be fixed by the Mayor. The powers of the Mayor regarding the holding of meeting of the Corporation, therefore, are not derived from any compact as in the case of directors of a company but are essentially statutory in nature. We do not think, with respect, that, in these circumstances, it would be proper to apply the aforestated observations of hackleton to the present case. Moreover, as we have already pointed out, the case before this Court in Chandrakant Khaire v. Dr. Shantaram Kale ((1988) 4 SCC 577 : AIR 1988 SC 1665 ) was not a case where a notice convening a meeting was cancelled and later a notice convening another meeting was issued but it was a case where a meeting duly convened had commenced and it was alleged that the Municipal Commissioner had adjourned it without there being any resolution to that effect. We are, therefore, of the view that the aforesaid observations in the decision of Chandrakant Khaire case ((1974) 4 SCC 854 : AIR 1974 SC 1218 : (1974) 3 SCR 738 ) are not applicable to the case before us15. We can derive some support to our view from a decision of this Court in Mohd. Yunus Saleem v. Shiv Kumar Shastri ((1988) 4 SCC 577 : AIR 1988 SC 1665 ). In that case, the facts were that a parliamentary constituency from which election to Lok Sabha took place in 1971 consisted of five assembly constituencies. The polling at two of these was scheduled to take place on March 1 and at the other three on March 3, 1971. The polling at the first two constituencies took place as scheduled but on March 2 there was a communal riot, as a result of which the Election Commissioner postponed the poll at the other three constituencies from March 3 to March 9. The polling took place in the said constituencies on the postponed date and the first respondent was declared elected. The appellant challenged the election in an petition. It was contended by him, inter alia, that the Election Commissioner had no power to alter the date of the poll at the remaining constituencies. The election petition was dismissed by the High Court. On appeal to this Court, this Court took the view that Section 153 of the Representation of the People Act, 1951 on which reliance had been placed by the High Court in taking the view that the Election Commissioner had power to postpone the poll was not applicable because it dealt only with the question of extending time for completion of the election and not for altering the date of the poll; Sections 57 and 58 of the Representation of the People Act, 1951 could not be invoked by the Election Commissioner for this purpose. It was, however, held that Section 30 of the Representation of the People Act read with Section 21 of the General Clauses Act gives necessary powers to the Election Commissioner to alter the date of the poll. We may point out that we do not propose to set out the provisions of Section 30 of the Representation of the People Act because it is not necessary to do so. Suffice it to note that the said section provides that the Election Commissioner shall be notification in the official gazette appoint inter alia the date or dates on which a poll shall, if necessary, be taken and also the date before which the election shall be completed. Section 153 confers upon the election Commissioner the power to extend the time for the completion of the election. Section 21 of the Central General Clauses Act is in pari materia with Section 21 of the Bombay General Clauses Act which was applicable in the case before us and which we have already set out earlier. It is true that the ration of this case is not directly applicable to the case before us. However, it does appear to us that, on a parity of reasoning, it must be held that the Mayor had the implied power to cancel a meeting or postpone a meeting which was duly convened before the said meeting commenced and to convene the same on a subsequent occasion. It is needless to say that this power must be exercised by the Mayor bona fide and not for a collateral purpose. The power must again be exercised for a proper purpose. If the Mayor is unable to show this, then the postponement of the meeting must be held to be bad. But it is not possible to say that the Mayor had no power to cancel a meeting duly convened and to direct that the same should be held on a later day provided that the power was exercised bona fide and for a justified purpose16. We may now refer to certain other decisions which are cited before us. Our attention was drawn by respondent 1 to the decision of a learned Single Judge of the Gujarat High Court in Babubhai Girdharbhai Patel v. Manibhai Ashabhai Patel ((1975) 16 GLR 566 ). In that case, the facts were in pari materia with the facts before us. It was held by the learned Single Judge of that court that on a plain reading of sub-section (11) of Section 51 of the Gujarat Municipalities Act, 1963 it is clear that a meeting can be adjourned only provided a majority of the councillors accord their consent to such adjournment. It was also held that it is open to the President to cancel or adjourn the meeting if he personally considers it necessary or desirable to do so before the councillors assemble. It was observed that the President of the Municipality does not have unrestricted power to cancel or adjourn a meeting at his humour or pleasure or caprice. No assistance can be arrived at by respondent 1 from this judgment because that decision has been reversed in respect of the aforestated conclusions by a Division Bench of the Gujarat High Court in Letters Patent Appeal No. 183 of 1974 decided on November 20, 1974 by B. J. Divan, C.J., and T. U. Mehta, J., the judgment having been delivered by Divan, C.J. In that case, it was held that it is obvious that the President of the Municipality in whom the power to call a meeting of the Municipality had been vested by Section 51(1) of the Gujarat Municipalities Act 1963 must also be conferred the power to adjourn the meeting if, because of certain extraordinary circumstances like civil commotion or act of God or any other unusual event, it becomes necessary to adjourn the holing of the meeting. The learned Judges constituting the Division Bench held that they were unable to agree with the view of the learned Single Judge to the effect that the doctrine that he who has such power to convene a meeting has also the power to adjourn the meeting, if the circumstances so demand, cannot be read into the provisions of the Gujarat Municipalities Act. The learned Judges, however, agreed with the learned Single Judge that the President of the Municipality had no power to adjourn the meeting at his will or caprice. They also pointed out that unless unusual circumstances beyond the control of the President of the Municipality prevail, he cannot utilise this power to adjourn a meeting which has once been notified. Taking into account all the facts and circumstances of the case, it was held that the adjournment of the meeting of the Municipality by the President was not warranted in law and was, therefore, invalid. We may, however, point out that neither the learned Single Judge who delivered the judgment in Babubhai Girdharbhai Patel v. Manibhai Ashabhai Patel ((1975) 16 GLR 566 ) nor the Division Bench, which reversed this decision to the extent set out by us have taken into account the provisions of Section 21 of the Bombay General Clauses Act, which we have already referred to. That section fortifies the view taken by the Division Bench17. We may nor refer to the decision of the Allahabad High Court in R. K. Jain v. Bar Council of U. P. (AIR 1974 All 211 ) In that case, the Bar Council of U.P. in exercise of its power under Section 15(2) ofthe Advocates Act, 1961, framed rules which regulate the manner and procedure of holding the election of the members to the Bar Council. These rule are known as Bar Council of Uttar Pradesh Election Rules, 1968. Rule 4 lays down that the election of members to the Bar Council shall be held at such place or places, on such date or dates, and during such hour or hours as the Council may appoint. Rule 6 provides that notice of the time and place of election shall be given by publication in the manner prescribed under the rules. The learned Single Judges (K. N. Singh, J., as he then was) who decided the case held that the principles laid down in Section 21 of the General Clauses Act are fully applicable in construing Rules 4 and 6 of the said Election Rules, 1968. On the facts of the case it was held that the Bar Council had the full jurisdiction to change the date of an election and to postpone the election or to fix dates for holding the election afresh till the elections were completed18. In our view, the learned Judges of the Gujarat High Court who delivered the judgment under consideration before us need not have considered themselves bound by the aforesaid observations in Chandrakant Khaire case ((1988) 4 SCC 577 : AIR 1988 SC 1665 ), as they have done. In the first place, these observations do not constitute the ratio of the judgment in that case. The question in that case was whether a meeting which was duly convened and had commenced could have been adjourned by the Municipal Commissioner and not whether a notice convening a meeting issued by the Municipal Corporation could be cancelled by him before the commencement of the meeting with a view to have the meeting held on a subsequent date. We are of the view that the Division Bench was not really called upon to consider the situation in such a case, as we have pointed out earlier. Moreover, it appears that the Division Bench has not taken into account the provisions of Section 21 of the Bombay General Clauses Act or the principles underlying that section. No argument was advanced before the Division Bench on the basis of that section at all. The attention of the Division Bench was not drawn to the judgment of this Court in Mohd. Yunus Saleem case ((1974) 4 SCC 854 : AIR 1974 SC 1218 : (1974) 3 SCR 738 ). Had that been done, we feel that the Division Bench which decided that Chandrakant Khaire case (1988) 4 SCC 577 : AIR 1988 SC 1665 ), might not have made the aforestated observations at all. In our view, the principles underlying Section 21 of the Bombay General Clauses Act would be clearly applicable in considering the scope of the powers of the Mayor of a Municipal Corporation set out in clause 1 of Chapter II of the said Schedule in the said Act and in particular, in sub-clause (c) of the said clause. We may point out that the rules in the Schedule have been framed under the statutory provisions of the said Act and Section 453 of the said Act provides that the rules in the schedule as amended from time to time shall be deemed to be part of that Act. In our view, the power of the Mayor conferred under clause 1 of Chapter II of the said Schedule must be regarded as a statutory power as distinguished from the powers of directors of a company which are derived strictly from the Articles of Association of the Company which are contractual in nature. There appears to be no reason to take the view that the principles underlying Section 21 of the Bombay General Clauses Act would not apply to the said powers of the Mayor. In our view, appellant 1, the Mayor of respondent 5, Corporation, had the power to cancel the notice convening the meeting before the commencement of the meeting with a view to convene the meeting on later date. The questions, however, whether he has exercised the power within its true ambit is a different question altogether. In this regard, in our opinion, although the Mayor had to power to cancel the notice convening the meeting and to direct the secretary to issue a notice to that effect, the said power could be exercised only bona fide and for a purpose or purposes within the scope of the said Act. If the power was exercised mala fide or for a collateral purpose, the exercise of the power would certainly be bad. In the present case, there is considerable factual controversy as to whether, even on the footing that appellant 1 had the power to cancel the notice convening the meeting that power was exercised bona fide for a purpose within the scope of the said Act or whether it was exercised for collateral or impermissible purposes. We remand the matter to the Gujarat High Court for the determination of that question. In view of the urgency of the matter, we would request the Gujarat High Court to dispose of the writ petition latest by April 30, 1989 as far as possible. The interim order granted by this Court on November 16, 1988 shall continue up to May 5, 1989, subject to any orders which may be passed hereafter by the Gujarat High Court. From that date, it will be for the parties to apply for appropriate interim orders to the Gujarat High Court till the case is finally disposed of by that court | 1 | 6,444 | 3,524 | ### 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:
Clauses Act, which we have already referred to. That section fortifies the view taken by the Division Bench. 17. We may nor refer to the decision of the Allahabad High Court in R. K. Jain v. Bar Council of U. P. (AIR 1974 All 211 ) In that case, the Bar Council of U.P. in exercise of its power under Section 15(2) of the Advocates Act, 1961, framed rules which regulate the manner and procedure of holding the election of the members to the Bar Council. These rule are known as Bar Council of Uttar Pradesh Election Rules, 1968. Rule 4 lays down that the election of members to the Bar Council shall be held at such place or places, on such date or dates, and during such hour or hours as the Council may appoint. Rule 6 provides that notice of the time and place of election shall be given by publication in the manner prescribed under the rules. The learned Single Judges (K. N. Singh, J., as he then was) who decided the case held that the principles laid down in Section 21 of the General Clauses Act are fully applicable in construing Rules 4 and 6 of the said Election Rules, 1968. On the facts of the case it was held that the Bar Council had the full jurisdiction to change the date of an election and to postpone the election or to fix dates for holding the election afresh till the elections were completed. 18. In our view, the learned Judges of the Gujarat High Court who delivered the judgment under consideration before us need not have considered themselves bound by the aforesaid observations in Chandrakant Khaire case ((1988) 4 SCC 577 : AIR 1988 SC 1665 ), as they have done. In the first place, these observations do not constitute the ratio of the judgment in that case. The question in that case was whether a meeting which was duly convened and had commenced could have been adjourned by the Municipal Commissioner and not whether a notice convening a meeting issued by the Municipal Corporation could be cancelled by him before the commencement of the meeting with a view to have the meeting held on a subsequent date. We are of the view that the Division Bench was not really called upon to consider the situation in such a case, as we have pointed out earlier. Moreover, it appears that the Division Bench has not taken into account the provisions of Section 21 of the Bombay General Clauses Act or the principles underlying that section. No argument was advanced before the Division Bench on the basis of that section at all. The attention of the Division Bench was not drawn to the judgment of this Court in Mohd. Yunus Saleem case ((1974) 4 SCC 854 : AIR 1974 SC 1218 : (1974) 3 SCR 738 ). Had that been done, we feel that the Division Bench which decided that Chandrakant Khaire case (1988) 4 SCC 577 : AIR 1988 SC 1665 ), might not have made the aforestated observations at all. In our view, the principles underlying Section 21 of the Bombay General Clauses Act would be clearly applicable in considering the scope of the powers of the Mayor of a Municipal Corporation set out in clause 1 of Chapter II of the said Schedule in the said Act and in particular, in sub-clause (c) of the said clause. We may point out that the rules in the Schedule have been framed under the statutory provisions of the said Act and Section 453 of the said Act provides that the rules in the schedule as amended from time to time shall be deemed to be part of that Act. In our view, the power of the Mayor conferred under clause 1 of Chapter II of the said Schedule must be regarded as a statutory power as distinguished from the powers of directors of a company which are derived strictly from the Articles of Association of the Company which are contractual in nature. There appears to be no reason to take the view that the principles underlying Section 21 of the Bombay General Clauses Act would not apply to the said powers of the Mayor. In our view, appellant 1, the Mayor of respondent 5, Corporation, had the power to cancel the notice convening the meeting before the commencement of the meeting with a view to convene the meeting on later date. The questions, however, whether he has exercised the power within its true ambit is a different question altogether. In this regard, in our opinion, although the Mayor had to power to cancel the notice convening the meeting and to direct the secretary to issue a notice to that effect, the said power could be exercised only bona fide and for a purpose or purposes within the scope of the said Act. If the power was exercised mala fide or for a collateral purpose, the exercise of the power would certainly be bad. In the present case, there is considerable factual controversy as to whether, even on the footing that appellant 1 had the power to cancel the notice convening the meeting that power was exercised bona fide for a purpose within the scope of the said Act or whether it was exercised for collateral or impermissible purposes. We remand the matter to the Gujarat High Court for the determination of that question. In view of the urgency of the matter, we would request the Gujarat High Court to dispose of the writ petition latest by April 30, 1989 as far as possible. The interim order granted by this Court on November 16, 1988 shall continue up to May 5, 1989, subject to any orders which may be passed hereafter by the Gujarat High Court. From that date, it will be for the parties to apply for appropriate interim orders to the Gujarat High Court till the case is finally disposed of by that court.
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1
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the Bombay General Clauses Act, which we have already referred to. That section fortifies the view taken by the Division Bench17. We may nor refer to the decision of the Allahabad High Court in R. K. Jain v. Bar Council of U. P. (AIR 1974 All 211 ) In that case, the Bar Council of U.P. in exercise of its power under Section 15(2) ofthe Advocates Act, 1961, framed rules which regulate the manner and procedure of holding the election of the members to the Bar Council. These rule are known as Bar Council of Uttar Pradesh Election Rules, 1968. Rule 4 lays down that the election of members to the Bar Council shall be held at such place or places, on such date or dates, and during such hour or hours as the Council may appoint. Rule 6 provides that notice of the time and place of election shall be given by publication in the manner prescribed under the rules. The learned Single Judges (K. N. Singh, J., as he then was) who decided the case held that the principles laid down in Section 21 of the General Clauses Act are fully applicable in construing Rules 4 and 6 of the said Election Rules, 1968. On the facts of the case it was held that the Bar Council had the full jurisdiction to change the date of an election and to postpone the election or to fix dates for holding the election afresh till the elections were completed18. In our view, the learned Judges of the Gujarat High Court who delivered the judgment under consideration before us need not have considered themselves bound by the aforesaid observations in Chandrakant Khaire case ((1988) 4 SCC 577 : AIR 1988 SC 1665 ), as they have done. In the first place, these observations do not constitute the ratio of the judgment in that case. The question in that case was whether a meeting which was duly convened and had commenced could have been adjourned by the Municipal Commissioner and not whether a notice convening a meeting issued by the Municipal Corporation could be cancelled by him before the commencement of the meeting with a view to have the meeting held on a subsequent date. We are of the view that the Division Bench was not really called upon to consider the situation in such a case, as we have pointed out earlier. Moreover, it appears that the Division Bench has not taken into account the provisions of Section 21 of the Bombay General Clauses Act or the principles underlying that section. No argument was advanced before the Division Bench on the basis of that section at all. The attention of the Division Bench was not drawn to the judgment of this Court in Mohd. Yunus Saleem case ((1974) 4 SCC 854 : AIR 1974 SC 1218 : (1974) 3 SCR 738 ). Had that been done, we feel that the Division Bench which decided that Chandrakant Khaire case (1988) 4 SCC 577 : AIR 1988 SC 1665 ), might not have made the aforestated observations at all. In our view, the principles underlying Section 21 of the Bombay General Clauses Act would be clearly applicable in considering the scope of the powers of the Mayor of a Municipal Corporation set out in clause 1 of Chapter II of the said Schedule in the said Act and in particular, in sub-clause (c) of the said clause. We may point out that the rules in the Schedule have been framed under the statutory provisions of the said Act and Section 453 of the said Act provides that the rules in the schedule as amended from time to time shall be deemed to be part of that Act. In our view, the power of the Mayor conferred under clause 1 of Chapter II of the said Schedule must be regarded as a statutory power as distinguished from the powers of directors of a company which are derived strictly from the Articles of Association of the Company which are contractual in nature. There appears to be no reason to take the view that the principles underlying Section 21 of the Bombay General Clauses Act would not apply to the said powers of the Mayor. In our view, appellant 1, the Mayor of respondent 5, Corporation, had the power to cancel the notice convening the meeting before the commencement of the meeting with a view to convene the meeting on later date. The questions, however, whether he has exercised the power within its true ambit is a different question altogether. In this regard, in our opinion, although the Mayor had to power to cancel the notice convening the meeting and to direct the secretary to issue a notice to that effect, the said power could be exercised only bona fide and for a purpose or purposes within the scope of the said Act. If the power was exercised mala fide or for a collateral purpose, the exercise of the power would certainly be bad. In the present case, there is considerable factual controversy as to whether, even on the footing that appellant 1 had the power to cancel the notice convening the meeting that power was exercised bona fide for a purpose within the scope of the said Act or whether it was exercised for collateral or impermissible purposes. We remand the matter to the Gujarat High Court for the determination of that question. In view of the urgency of the matter, we would request the Gujarat High Court to dispose of the writ petition latest by April 30, 1989 as far as possible. The interim order granted by this Court on November 16, 1988 shall continue up to May 5, 1989, subject to any orders which may be passed hereafter by the Gujarat High Court. From that date, it will be for the parties to apply for appropriate interim orders to the Gujarat High Court till the case is finally disposed of by that court
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Ashutosh Chaturvedi Vs. Prano Devi @ Parani Devi | relatives. It is not suggested by the appellants in the present case that Dhanu Lal died leaving behind any heir other than his two sons. I am, therefore, of the opinion that the proviso to Section 6 does not apply to the present case so as to defeat the rule of survivorship being applied to the parties. When Dhanu Lal died, his two sons took the entire interest by survivorship and as is admittedly the case now there has been separation between the two sons before the sale deed by defendants 25 to 28 was executed. Defendant No.1 or his sons, therefore, cannot be permitted to invoke the benefit of Section 22 of the Act.9. There appears to be another difficulty in the way of the appellants in raising this question. Sub-section (2) of Section 22 of the Hindu Succession Act indicates that a party can enforce a right of pre-emption by making an application to that effect in a Court which has been explained in the Explanation to this Section. If a party intending to take the benefit of the right given under Section 22(1), files an application, the Court has to determine the amount of consideration for the intended transfer and the party is again given an option to get such a transfer from the co-sharer on such consideration or to refuse the same. If the party declines to purchase the property for the same amount, he has to bear the cost of the proceeding. No such application has ever been filed by any of the parties anywhere. This plea was not even raised in the Court below. It was for the first time in this appeal that the appellants have raised this point. Even in this Court no application has been filed for enforcement of such a right. In these circumstances, the plea has to be rejected." 13. In Muralidhar Das v. Bansidhar Das and Ors. [AIR 1986 Orissa 119], upon taking into consideration the decisions of the Calcutta and Kerala High Court, stated the law in the following terms: "Sub-section (2) provides for determination of consideration when there is a difference between the parties, namely, the one intending to acquire and the other proposing to transfer. The provision does not go any further. S. 22 does not lay down any other procedure. The scope of the application is limited and hence the jurisdiction of the Court. The section does not lay down the procedure for the enforcement of the right conferred under sub-section (1). Only one aspect of the controversies that might arise pursuant to the right conferred by sub-section (1) has been taken care of and no other. The provision being clear and categorical and there being no ambiguity in it, it is not open to the Court to so interpret the provision which would amount to legislating on its part. Ordinarily the Courts do not make law but interpret it." 14. The decision of the Kerala High Court also provides for a right upon a co-sharer to file a suit for enforcing such a right, stating: "The object of sub-section (1) as we understand it is that in cases where by virtue of intestate succession under the Act any interest in immovable property has devolved upon two or more heirs specified in Class I of the Schedule and any one of such heirs proposes to transfer his interest in the property the other heirs should have a preferential right to acquire the interest which is so proposed to be transferred. The said intention of Parliament can be effectuated only if we consider the section as conferring an enforceable right on the heirs other than the one who proposes to transfer his interest. The section confers on such co-heirs a preferential right to acquire the interest which is proposed to be transferred by the other co-heir. In case the proposed transfer is effected by one of the co-heirs in violation of the right conferred on his co-heirs by sub-s.(1) the latter cannot certainly be without a remedy because every legal right must necessarily carry with it a remedy for enforcing the same. The remedy of the non-alienating co-heirs, in such circumstances, will, in our opinion, be to seek the intervention of the Court to enable them to acquire the right which has been transferred away by the other co-heir in violation of sub-section (1) of Section 22. In as much as the section does not provide any special procedure for seeking the said remedy, the ordinary procedure for enforcement of any civil right has to be resorted to by the co-heirs who wish to enforce their rights under Section 22(1); in other words the remedy is by way of a regular civil suit before the competent court. Where the properties have been already alienated in favour of strangers there is all the more reason why there should be a full and fair adjudication of the entire matter in a suit tried before a competent civil Court because various factual questions are bound to arise for determination in such a suit wherein the principal issue would be whether the transfer complained of was effected in violation of sub-section (1) of Section 22. The main purpose of such a suit instituted by the co-heir will necessarily be the enforcement of the right conferred by Section 22(1) of the Act. The question of invalidity of the transfer effected by the other co-heir in favour of strangers becomes relevant in such an action as an incidental matter which has necessarily to be gone into for the purpose of determining whether the plaintiff is entitled to the relief sought by him against his co-heirs in enforcement of the right conferred by Section 22(1)." 15. The only remedy which was, thus, available to the appellant might be to file a suit. But as the same itself being barred by limitation, we are of the opinion that the Court would not exercise its discretionary jurisdiction to allow the amendment of the plaint. | 0[ds]n of Mr. Pandey that two deeds of sale were executed in violation of the order of injunction and in that view of the matter, the deeds of sale must be held to be invalid in law,in our opinion, cannot be a ground for allowing the amendment of the plaint. If the deeds of sale are held to be bad in law, that would not mean that by reason thereof, the co-sharer of the plaintiff would propose to execute a sale deed giving a cause of action for filing a fresh suit. Plaintiff was required to exercise his right under Section 22 of the Hindu Succession Act within the period prescribed therefor. The said deeds of sale either would be declared valid or invalid. In either way, the appellant cannot take any benefit of the provisions of Section 22 of the Hindu Succession Act.10. It is also idle to contend that as the matters had been pending in the court of the District Judge for a long period, the appellant could not file an application for amendment of plaint. Even if the records had been called for by the learned District Judge, the same would not have come in the way of the appellant for filing an application for amendment of the plaint. A Trial Court, despite requisitioning of the records by the Appellate Court maintains a supplementary record. There is nothing on record to show that the learned District Judge granted an order of stay.The only remedy which was, thus, available to the appellant might be to file a suit. But as the same itself being barred by limitation, we are of the opinion that the Court would not exercise its discretionary jurisdiction to allow the amendment of the plaint. | 0 | 2,923 | 320 | ### 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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relatives. It is not suggested by the appellants in the present case that Dhanu Lal died leaving behind any heir other than his two sons. I am, therefore, of the opinion that the proviso to Section 6 does not apply to the present case so as to defeat the rule of survivorship being applied to the parties. When Dhanu Lal died, his two sons took the entire interest by survivorship and as is admittedly the case now there has been separation between the two sons before the sale deed by defendants 25 to 28 was executed. Defendant No.1 or his sons, therefore, cannot be permitted to invoke the benefit of Section 22 of the Act.9. There appears to be another difficulty in the way of the appellants in raising this question. Sub-section (2) of Section 22 of the Hindu Succession Act indicates that a party can enforce a right of pre-emption by making an application to that effect in a Court which has been explained in the Explanation to this Section. If a party intending to take the benefit of the right given under Section 22(1), files an application, the Court has to determine the amount of consideration for the intended transfer and the party is again given an option to get such a transfer from the co-sharer on such consideration or to refuse the same. If the party declines to purchase the property for the same amount, he has to bear the cost of the proceeding. No such application has ever been filed by any of the parties anywhere. This plea was not even raised in the Court below. It was for the first time in this appeal that the appellants have raised this point. Even in this Court no application has been filed for enforcement of such a right. In these circumstances, the plea has to be rejected." 13. In Muralidhar Das v. Bansidhar Das and Ors. [AIR 1986 Orissa 119], upon taking into consideration the decisions of the Calcutta and Kerala High Court, stated the law in the following terms: "Sub-section (2) provides for determination of consideration when there is a difference between the parties, namely, the one intending to acquire and the other proposing to transfer. The provision does not go any further. S. 22 does not lay down any other procedure. The scope of the application is limited and hence the jurisdiction of the Court. The section does not lay down the procedure for the enforcement of the right conferred under sub-section (1). Only one aspect of the controversies that might arise pursuant to the right conferred by sub-section (1) has been taken care of and no other. The provision being clear and categorical and there being no ambiguity in it, it is not open to the Court to so interpret the provision which would amount to legislating on its part. Ordinarily the Courts do not make law but interpret it." 14. The decision of the Kerala High Court also provides for a right upon a co-sharer to file a suit for enforcing such a right, stating: "The object of sub-section (1) as we understand it is that in cases where by virtue of intestate succession under the Act any interest in immovable property has devolved upon two or more heirs specified in Class I of the Schedule and any one of such heirs proposes to transfer his interest in the property the other heirs should have a preferential right to acquire the interest which is so proposed to be transferred. The said intention of Parliament can be effectuated only if we consider the section as conferring an enforceable right on the heirs other than the one who proposes to transfer his interest. The section confers on such co-heirs a preferential right to acquire the interest which is proposed to be transferred by the other co-heir. In case the proposed transfer is effected by one of the co-heirs in violation of the right conferred on his co-heirs by sub-s.(1) the latter cannot certainly be without a remedy because every legal right must necessarily carry with it a remedy for enforcing the same. The remedy of the non-alienating co-heirs, in such circumstances, will, in our opinion, be to seek the intervention of the Court to enable them to acquire the right which has been transferred away by the other co-heir in violation of sub-section (1) of Section 22. In as much as the section does not provide any special procedure for seeking the said remedy, the ordinary procedure for enforcement of any civil right has to be resorted to by the co-heirs who wish to enforce their rights under Section 22(1); in other words the remedy is by way of a regular civil suit before the competent court. Where the properties have been already alienated in favour of strangers there is all the more reason why there should be a full and fair adjudication of the entire matter in a suit tried before a competent civil Court because various factual questions are bound to arise for determination in such a suit wherein the principal issue would be whether the transfer complained of was effected in violation of sub-section (1) of Section 22. The main purpose of such a suit instituted by the co-heir will necessarily be the enforcement of the right conferred by Section 22(1) of the Act. The question of invalidity of the transfer effected by the other co-heir in favour of strangers becomes relevant in such an action as an incidental matter which has necessarily to be gone into for the purpose of determining whether the plaintiff is entitled to the relief sought by him against his co-heirs in enforcement of the right conferred by Section 22(1)." 15. The only remedy which was, thus, available to the appellant might be to file a suit. But as the same itself being barred by limitation, we are of the opinion that the Court would not exercise its discretionary jurisdiction to allow the amendment of the plaint.
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n of Mr. Pandey that two deeds of sale were executed in violation of the order of injunction and in that view of the matter, the deeds of sale must be held to be invalid in law,in our opinion, cannot be a ground for allowing the amendment of the plaint. If the deeds of sale are held to be bad in law, that would not mean that by reason thereof, the co-sharer of the plaintiff would propose to execute a sale deed giving a cause of action for filing a fresh suit. Plaintiff was required to exercise his right under Section 22 of the Hindu Succession Act within the period prescribed therefor. The said deeds of sale either would be declared valid or invalid. In either way, the appellant cannot take any benefit of the provisions of Section 22 of the Hindu Succession Act.10. It is also idle to contend that as the matters had been pending in the court of the District Judge for a long period, the appellant could not file an application for amendment of plaint. Even if the records had been called for by the learned District Judge, the same would not have come in the way of the appellant for filing an application for amendment of the plaint. A Trial Court, despite requisitioning of the records by the Appellate Court maintains a supplementary record. There is nothing on record to show that the learned District Judge granted an order of stay.The only remedy which was, thus, available to the appellant might be to file a suit. But as the same itself being barred by limitation, we are of the opinion that the Court would not exercise its discretionary jurisdiction to allow the amendment of the plaint.
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Ajit Singh and Others Vs. State of Punjab | right leg and from the X-ray he found a small cut, about 1/6th inch in the cortex of tibia in its upper part and on this finding he declared injury No. 3 as grievous.5. The injury on Rajinder Singh was described as follows : "A swelling around the right ankle joint 4 cm. x 3 cm. is present mainly on the medial side of right ankle. A contused area 6 cm. x 2 cm. on the posterior surface of right leg in its lower 1/3rd part of it. Transverse in nature."6. Mohinder Singhs injury was described thus : "An incised wound of 5 cm. x 1.5 cm. elliptical in shape transverse in position. On the posterior surface middle part of the left leg. Both the end of it have a tail of cut. The wound is only skin deep. The wound has been stitched by me. Wound also shows clotted blood in it."Dr. Kalra was cross-examined in order to establish that these injuries were self-suffered or self-inflicted. He deposed that neither Rajinder Singhs injury not Mohinder Singhs injury could be self-inflicted or self-suffered. He was also cross-examined to establish that the story about the piece of bone having been removed and handed over to the police was false but he stuck to his version, as stated in his examination-in-chief.7. The defence examined Dr. Pritam Singh, Radiologist, who had X-rayed Jawand Singhs right leg and, according to him, he found no evidence of fracture in the upper part of the leg. Confronted with the earlier skiagram, he said :"There is a partial cut of 1/6". In an upper part of the tibia but this cut could not be seen in the X-ray taken by me. Probably it might have healed as it was so small."8. One other point which the learned counsel mentioned in connection with the injuries was that it has not been established that injury No. 3 on Jawand Singh was the result of two blows, as deposed by the witnesses. No such question was asked from Dr. Kalra and therefore the learned counsel is not entitled to raise this point.9. The learned counsel urged that the injuries in this case have been self-inflicted. We are unable to agree with him in this respect. Not only has the doctor given opinion on this fact, but we are also not inclined to believe that Jawand Singh would let himself be injured in the way in which he was actually injured. There are five eye-witnesses who support the prosecution story; three are injured persons and Amar Singh, P.W. 2 and Banta Singh, P.W. 3, seem to be quite independent. They were both working near about the place of occurrence.10. The learned Judicial Magistrate adopted a curious method of judging the prosecution case. He listed about 14 points and then dealt with each point separately. The points which he took were :"1. The presence of the witnesses at the spot. Their order of reaching there.2. Possibility of causing by Ajit Singh on the right leg of Jawand Singh.3. Giving of Lalkara. By whom ?4. Presence of the accused at spot.5. Responsibility for the injury caused on the left wrist of Jawand Singh.6. Causing of injury by Mohan Singh accused on the left leg of Jawand Singh.7. Causing of injury by Takwa blow by Bira accused.8. Giving of Takwa blow on the hand of Jawand Singh.9. Causing of Lathi blow on the person of Rajinder Singh.10. Taking the injured person to home. By whom and how ?11. Presence of blood at the spot and in the home.12. Presence of blood on the clothes of the injured.13. The story of cot.14. The story of taking the injured."He did not examine the case of the prosecution as a whole, and, in our opinion, the High Court rightly criticised this method of dealing with the prosecution case. The High Court was perhaps forced also to discuss the reasons given by the learned Judicial Magistrate in respect of each point, but perhaps it would have been better to have dealt with the evidence as a whole.11. We have looked into the evidence and we find that there is no reason why we should not believe the evidence of Amar Singh, Banta Singh and the three injured witnesses.12. The learned counsel urged that the story of the prosecution is not probable because no blood had been found from the site of the occurrence. But there is no reason to disbelieve P.W. 2 and P.W. 3 when they sat that the accused stayed behind and destroyed the evidence by ploughing the land why the police came there was neither any blood not the foot prints of the bullocks, apparently because the accused had cleared the site the next day.13. The learned counsel then urged that the police did not take any blood from the house of the injured persons where they were taken after the assault. We do not see why the police should have bothered to take any blood from the house because if the prosecution case in false and the injuries were self-inflicted blood would be present in the house in that eventuality also.14. The learned counsel then said that three accused persons have been acquitted on the same evidence and that weakens the evidence of the alleged eye-witnesses. The High Court has distinguished the case of those accused persons because they had no motive whatsoever. But we are at present not concerned whether those person were guilty or not guilty. The present appellants had motive and were likely to have committed the assault.15. The last point which the learned counsel urged was that the injured persons went to the hospital rather than to the police station. We see no force in this point. It is not necessary that the injured witnesses should first go to the police station. The other witnesses were really interested in the dispute and they chose not to go to the police station. We cannot draw any adverse inference from their behaviour. | 0[ds]We are unable to agree with him in this respect. Not only has the doctor given opinion on this fact, but we are also not inclined to believe that Jawand Singh would let himself be injured in the way in which he was actually injured. There are fivewho support the prosecution story; three are injured persons and Amar Singh, P.W. 2 and Banta Singh, P.W. 3, seem to be quite independent. They were both working near about the place ofdid not examine the case of the prosecution as a whole, and, in our opinion, the High Court rightly criticised this method of dealing with the prosecution case. The High Court was perhaps forced also to discuss the reasons given by the learned Judicial Magistrate in respect of each point, but perhaps it would have been better to have dealt with the evidence as a whole.11. We have looked into the evidence and we find that there is no reason why we should not believe the evidence of Amar Singh, Banta Singh and the three injuredthere is no reason to disbelieve P.W. 2 and P.W. 3 when they sat that the accused stayed behind and destroyed the evidence by ploughing the land why the police came there was neither any blood not the foot prints of the bullocks, apparently because the accused had cleared the site the nextdo not see why the police should have bothered to take any blood from the house because if the prosecution case in false and the injuries wereblood would be present in the house in that eventualityHigh Court has distinguished the case of those accused persons because they had no motive whatsoever. But we are at present not concerned whether those person were guilty or not guilty. The present appellants had motive and were likely to have committed thesee no force in this point. It is not necessary that the injured witnesses should first go to the police station. The other witnesses were really interested in the dispute and they chose not to go to the police station. We cannot draw any adverse inference from their behaviour. | 0 | 2,051 | 383 | ### 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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right leg and from the X-ray he found a small cut, about 1/6th inch in the cortex of tibia in its upper part and on this finding he declared injury No. 3 as grievous.5. The injury on Rajinder Singh was described as follows : "A swelling around the right ankle joint 4 cm. x 3 cm. is present mainly on the medial side of right ankle. A contused area 6 cm. x 2 cm. on the posterior surface of right leg in its lower 1/3rd part of it. Transverse in nature."6. Mohinder Singhs injury was described thus : "An incised wound of 5 cm. x 1.5 cm. elliptical in shape transverse in position. On the posterior surface middle part of the left leg. Both the end of it have a tail of cut. The wound is only skin deep. The wound has been stitched by me. Wound also shows clotted blood in it."Dr. Kalra was cross-examined in order to establish that these injuries were self-suffered or self-inflicted. He deposed that neither Rajinder Singhs injury not Mohinder Singhs injury could be self-inflicted or self-suffered. He was also cross-examined to establish that the story about the piece of bone having been removed and handed over to the police was false but he stuck to his version, as stated in his examination-in-chief.7. The defence examined Dr. Pritam Singh, Radiologist, who had X-rayed Jawand Singhs right leg and, according to him, he found no evidence of fracture in the upper part of the leg. Confronted with the earlier skiagram, he said :"There is a partial cut of 1/6". In an upper part of the tibia but this cut could not be seen in the X-ray taken by me. Probably it might have healed as it was so small."8. One other point which the learned counsel mentioned in connection with the injuries was that it has not been established that injury No. 3 on Jawand Singh was the result of two blows, as deposed by the witnesses. No such question was asked from Dr. Kalra and therefore the learned counsel is not entitled to raise this point.9. The learned counsel urged that the injuries in this case have been self-inflicted. We are unable to agree with him in this respect. Not only has the doctor given opinion on this fact, but we are also not inclined to believe that Jawand Singh would let himself be injured in the way in which he was actually injured. There are five eye-witnesses who support the prosecution story; three are injured persons and Amar Singh, P.W. 2 and Banta Singh, P.W. 3, seem to be quite independent. They were both working near about the place of occurrence.10. The learned Judicial Magistrate adopted a curious method of judging the prosecution case. He listed about 14 points and then dealt with each point separately. The points which he took were :"1. The presence of the witnesses at the spot. Their order of reaching there.2. Possibility of causing by Ajit Singh on the right leg of Jawand Singh.3. Giving of Lalkara. By whom ?4. Presence of the accused at spot.5. Responsibility for the injury caused on the left wrist of Jawand Singh.6. Causing of injury by Mohan Singh accused on the left leg of Jawand Singh.7. Causing of injury by Takwa blow by Bira accused.8. Giving of Takwa blow on the hand of Jawand Singh.9. Causing of Lathi blow on the person of Rajinder Singh.10. Taking the injured person to home. By whom and how ?11. Presence of blood at the spot and in the home.12. Presence of blood on the clothes of the injured.13. The story of cot.14. The story of taking the injured."He did not examine the case of the prosecution as a whole, and, in our opinion, the High Court rightly criticised this method of dealing with the prosecution case. The High Court was perhaps forced also to discuss the reasons given by the learned Judicial Magistrate in respect of each point, but perhaps it would have been better to have dealt with the evidence as a whole.11. We have looked into the evidence and we find that there is no reason why we should not believe the evidence of Amar Singh, Banta Singh and the three injured witnesses.12. The learned counsel urged that the story of the prosecution is not probable because no blood had been found from the site of the occurrence. But there is no reason to disbelieve P.W. 2 and P.W. 3 when they sat that the accused stayed behind and destroyed the evidence by ploughing the land why the police came there was neither any blood not the foot prints of the bullocks, apparently because the accused had cleared the site the next day.13. The learned counsel then urged that the police did not take any blood from the house of the injured persons where they were taken after the assault. We do not see why the police should have bothered to take any blood from the house because if the prosecution case in false and the injuries were self-inflicted blood would be present in the house in that eventuality also.14. The learned counsel then said that three accused persons have been acquitted on the same evidence and that weakens the evidence of the alleged eye-witnesses. The High Court has distinguished the case of those accused persons because they had no motive whatsoever. But we are at present not concerned whether those person were guilty or not guilty. The present appellants had motive and were likely to have committed the assault.15. The last point which the learned counsel urged was that the injured persons went to the hospital rather than to the police station. We see no force in this point. It is not necessary that the injured witnesses should first go to the police station. The other witnesses were really interested in the dispute and they chose not to go to the police station. We cannot draw any adverse inference from their behaviour.
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0
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We are unable to agree with him in this respect. Not only has the doctor given opinion on this fact, but we are also not inclined to believe that Jawand Singh would let himself be injured in the way in which he was actually injured. There are fivewho support the prosecution story; three are injured persons and Amar Singh, P.W. 2 and Banta Singh, P.W. 3, seem to be quite independent. They were both working near about the place ofdid not examine the case of the prosecution as a whole, and, in our opinion, the High Court rightly criticised this method of dealing with the prosecution case. The High Court was perhaps forced also to discuss the reasons given by the learned Judicial Magistrate in respect of each point, but perhaps it would have been better to have dealt with the evidence as a whole.11. We have looked into the evidence and we find that there is no reason why we should not believe the evidence of Amar Singh, Banta Singh and the three injuredthere is no reason to disbelieve P.W. 2 and P.W. 3 when they sat that the accused stayed behind and destroyed the evidence by ploughing the land why the police came there was neither any blood not the foot prints of the bullocks, apparently because the accused had cleared the site the nextdo not see why the police should have bothered to take any blood from the house because if the prosecution case in false and the injuries wereblood would be present in the house in that eventualityHigh Court has distinguished the case of those accused persons because they had no motive whatsoever. But we are at present not concerned whether those person were guilty or not guilty. The present appellants had motive and were likely to have committed thesee no force in this point. It is not necessary that the injured witnesses should first go to the police station. The other witnesses were really interested in the dispute and they chose not to go to the police station. We cannot draw any adverse inference from their behaviour.
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Sattar and Ors Vs. High School Boarding Committee and Ors | 1. This appeal is directed against the judgment and final order dated 16.07.2002 passed by the High Court of Madhya Pradesh, Bench at Indore in S.A. No. 711 of 1974. Heard learned Counsel for the parties.2. The dispute in the present matter is regarding the availability of land for a muslim burial ground. The High Court has observed that the Plaintiffs who were muslims are entitled to a declaration that 2.49 acres of land is being used as a graveyard for the time immemorial.3. Shri V.A. Mohta, learned Senior Counsel appearing for the Appellants pointed out, in our view rightly, that the need for a burial ground only increases with the passage of time since more deaths take place every year. This submission has not been denied on behalf of the Respondents. The High Court in the penultimate paragraph has expressed the hope that the State and Local Administration will ensure providing land on the outskirts of the city for the purpose of burial of the deceased of the Muslim community. The extract of the land and its location is, however, not specified. The State has also not yet taken any steps to locate and demarcate the area for the said purpose for handing over to the Muslim community. | 1[ds]3. Shri V.A. Mohta, learned Senior Counsel appearing for the Appellants pointed out, in our view rightly, that the need for a burial ground only increases with the passage of time since more deaths take place every year.This submission has not been denied on behalf of the Respondents. The High Court in the penultimate paragraph has expressed the hope that the State and Local Administration will ensure providing land on the outskirts of the city for the purpose of burial of the deceased of the Muslim community. The extract of the land and its location is, however, not specified. The State has also not yet taken any steps to locate and demarcate the area for the said purpose for handing over to the Muslim community. | 1 | 227 | 140 | ### 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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1. This appeal is directed against the judgment and final order dated 16.07.2002 passed by the High Court of Madhya Pradesh, Bench at Indore in S.A. No. 711 of 1974. Heard learned Counsel for the parties.2. The dispute in the present matter is regarding the availability of land for a muslim burial ground. The High Court has observed that the Plaintiffs who were muslims are entitled to a declaration that 2.49 acres of land is being used as a graveyard for the time immemorial.3. Shri V.A. Mohta, learned Senior Counsel appearing for the Appellants pointed out, in our view rightly, that the need for a burial ground only increases with the passage of time since more deaths take place every year. This submission has not been denied on behalf of the Respondents. The High Court in the penultimate paragraph has expressed the hope that the State and Local Administration will ensure providing land on the outskirts of the city for the purpose of burial of the deceased of the Muslim community. The extract of the land and its location is, however, not specified. The State has also not yet taken any steps to locate and demarcate the area for the said purpose for handing over to the Muslim community.
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1
### Explanation:
3. Shri V.A. Mohta, learned Senior Counsel appearing for the Appellants pointed out, in our view rightly, that the need for a burial ground only increases with the passage of time since more deaths take place every year.This submission has not been denied on behalf of the Respondents. The High Court in the penultimate paragraph has expressed the hope that the State and Local Administration will ensure providing land on the outskirts of the city for the purpose of burial of the deceased of the Muslim community. The extract of the land and its location is, however, not specified. The State has also not yet taken any steps to locate and demarcate the area for the said purpose for handing over to the Muslim community.
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C. Buchivenkata Rao Vs. Union Of India & Ors | on behalf of Rao.11. We may now refer to the fresh question which was sought to be raised on behalf of the appellant by means of an application before us. This was, that this Court had pointed out in N. Setharamaiah v. Kotaiah Naidu, (1971) 1 SCR 153 = (AIR 1970 SC 1354 ), that, on 15th September, 1956 the Mineral Concession Rules were amended and a new sub-rule 28 (1-A) was introduced which provided that every application under Rule 27, shall be disposed of within nine months from the date of its receipt, and had held that the effect of the amended Rule 57, which was further amended on 14-9-1956, was that an application remaining undisposed of within the period prescribed will be deemed to be rejected. It was urged that we should allow this point to be argued for the first time in this Court although it was neither raised nor argued in the High Court. It was submitted that this was a pure question of law on which no investigation of facts afresh was required.12. On the other hand, it has been contended, on behalf of the contesting respondent, that a new point should not be allowed to be urged at this stage for which reliance was placed on Bhagwati Saran v. State of Uttar Pradesh, (1961) 3 SCR 563 at p. 568 = (AIR 1961 SC 928 ); S. L. Aggarwal v. General Manager, Hindustan Steel Ltd. (1970) 3 SCR 363 at p. 365 = (AIR 1970 SC 1150 ); Chitra Ghost v. Union of India, (1970) 1 SCR 413 at 420 = (AIR 1970 SC 35 ).13. Even if we had been disposed to consider this new ground on the plea that exceptional circumstances justified our going into it, we must here point out another fact which affects the very maintainability of the appeal before us now. The appellant B. Rao died on 18-2-1970. His sons filed an application in this Court on 20-7-1970 for impleading them as the heirs and legal representatives of the deceased. This application was tentatively allowed, on 3-11-1970, under the order of the Registrar of this Court, subject to such objection to the rights of the substituted appellants to be heard and to continue this appeal on behalf of the deceased as may be taken before us at the hearing of the appeal.14. It has to be remembered that, in order to enable a legal representative to continue a legal proceeding, the right to sue or to pursue a remedy must survive the death of his predecessor. In the instant case, we have set out provisions showing that the rights which an applicant may have had for the grant of a mining lease, on the strength of an alleged superior claim, cannot be separated from his personal qualifications. No provisions had been pointed out to us in the rules for impleading an heir who could continue the application for a mining lease. The scheme under the rules seems to be that, if an applicant dies a fresh application has to be presented by his heirs or legal representatives if they themselves desire to apply for the grant of a lease. It may be that the heirs and legal representatives, if they are continuing the business or industry of the deceased and have the required qualifications, obtain priority over an earlier applicant on account of special reasons for this preference. But, in each case, they have to apply afresh and set out their own qualifications. It has not been shown to us that any of the legal representatives have applied afresh. The legal representatives only claim to be entitled to succeed the deceased Buchivenkata Rao under a will. The assumption underlying the application is that, whatever right the deceased may have had to obtain a lease survived and vested in the heirs after his death. We are unable to accept the correctness of this assumption.15. In support of the contention on behalf of the heirs of Buchivenkata Rao, our attention was drawn to the case of Dhani Devi v. Sant Bihari, (1969) 2 SCR 507 = (AIR 1970 SC 759 ), which related to a right to obtain transfer of a permit for a motor vehicle under Section 61, sub-s (2) of the Motor Vehicles Act. It was held there that, in the case of the death of an applicant for the grant of a permit in respect of his motor vehicle, the Regional Transport Authority had the power to substitute the person succeeding to the possession of the vehicle in place of the deceased applicant. It was pointed out there that the right to the permit was related to the possession of the vehicle. Moreover, there was a rule enabling the Transport Authorities to substitute the heir or legal representatives of the deceased. No such rule applicable to the case of the heirs of the deceased Buchivenkata Rao has been pointed out to us. Therefore, we are unable to hold that the heirs, who have been heard, had any right to continue the appeal before us. This feature of the case is decisive not only on the right to be heard on the fresh ground but also on the right to advance any argument in support of the appeal of the deceased.16. We may mention that it was also urged that the matter was so old that any reversal of the grant of the mining lease to Venkatagiri, as long ago as 1960, would involve considerable dislocation and injury to respondent Venkatagiri without any fault on his part. The respondent Venkatagiri must have invested considerable amount of money in mining operations. The acceptance of the claim of Venkatagiri by the Government on the strength of which Venkatagiri made his investment cloths Venkatagiris claim with an equity which could not be defeated without clear proof of some over-riding legal right or interest of another claimant. We are unable to see any such right in the heirs of the deceased Buchivenkata Rao. | 0[ds]6. It is clear to us that the details mentioned in Rule 27 are intended for the correct identification of the individual to whom the lease is to be granted, the minerals which are to be mined, the area in respect of which the lease was to be granted and the qualifications of the applicant. Considerable emphasis was placed on the word shall in Rule 32 with regard to the priority to be given between different applicants. This rule does not directly affect the question whether an application for a lease could be considered a proper application or not by the authority concerned. The second proviso to this rule however, provides for the manner in which certain defects may be cured. Rule 32, sub-rule (2). introduced in 1955 before the grant of the application of Venkatagiri, shows that the individual qualifications of the applicants including their special knowledge, their capacity to engage technically efficient staff, their financial soundness and stability, had to be taken into account in determining the question of priority. Again Rule 26, imposing certain restrictions, prohibits the grant of the lease to any person who does not hold a certificate of approval from the State Government or who has not produced an Income-tax clearance certificate. It does not prohibit any grant on the ground that the application for it is defective or not acompanied by a map. The form of the application seems to be subordinate to the essential facts to be taken into account before granting a lease.7. There is no provision in the Act showing that the defects in an application which is accompanied by the free prescribed in Rule 28 cannot be subsequently removed. The information given in the application is intended for the satisfaction of the authorities granting the lease so that, after considering merits and making a grant, proper details are embodied in the lease actually granted. It was not urged anywhere that, as a result of any defects in the application of Venkatagiri, the lease itself could not be executed. This indication that the omission to file a proper map initially was cured.8. The High Court had relied on a decision of this Court in Banarsi Das v. Cane Commr. U.P. AIR 1963 SC 1417 , where conditions similar to those laid down by Rule 27 were held to be directory. It had also held that, even assuming that some of the requirements in the rules may be mandatory, it could not be held that the mere want of a map or of details, describing the area for which the lease was applied for, would make the application itself void or of no effect. We are, therefore, unable to find any error in the view adopted by the High Court that the supply of necessary details was directory and not mandatory. If it did not produce a defect which affected the validity of the lease, and the details supplied in the application correspondent with the contents of the lease after the alleged lacuna had been filled up, the grant of the lease of Venkatagiri was valid.9. As regards the second ground that the application of Venkatagiri had to be interpreted as an application for the continuation of an already existing lease and not for the grant of a fresh lease, we find that the High Court had rejected this contention by pointing out that the application was on a form which complied with Rule 27 so that it could be treated as a fresh application. We find nothing wrong with the High Courts interpretation of the application made by Venkatagiri.10. The High Court had also found, as a fact, that the order of the Central Government disclosed that it was based on relevant considerations and could not be said to have omitted consideration of anything material simply because the details of matters considered were not fully set out. We concur with this view and are unable to hold that the order of the Central Government was vitiated on the third ground urged on behalf ofwas, that this Court had pointed out in N. Setharamaiah v. Kotaiah Naidu, (1971) 1 SCR 153 = (AIR 1970 SC 1354 ), that, on 15th September, 1956 the Mineral Concession Rules were amended and a new sub-rule 28 (1-A) was introduced which provided that every application under Rule 27, shall be disposed of within nine months from the date of its receipt, and had held that the effect of the amended Rule 57, which was further amended on 14-9-1956, was that an application remaining undisposed of within the period prescribed will be deemed to be rejected. It was urged that we should allow this point to be argued for the first time in this Court although it was neither raised nor argued in the High Court. It was submitted that this was a pure question of law on which no investigation of facts afresh was required.12. On the other hand, it has been contended, on behalf of the contesting respondent, that a new point should not be allowed to be urged at this stage for which reliance was placed on Bhagwati Saran v. State of Uttar Pradesh, (1961) 3 SCR 563 at p. 568 = (AIR 1961 SC 928 ); S. L. Aggarwal v. General Manager, Hindustan Steel Ltd. (1970) 3 SCR 363 at p. 365 = (AIR 1970 SC 1150 ); Chitra Ghost v. Union of India, (1970) 1 SCR 413 at 420 = (AIR 1970 SC 35 ).13. Even if we had been disposed to consider this new ground on the plea that exceptional circumstances justified our going into it, we must here point out another fact which affects the very maintainability of the appeal before us now. The appellant B. Rao died on 18-2-1970. His sons filed an application in this Court on 20-7-1970 for impleading them as the heirs and legal representatives of the deceased. This application was tentatively allowed, on 3-11-1970, under the order of the Registrar of this Court, subject to such objection to the rights of the substituted appellants to be heard and to continue this appeal on behalf of the deceased as may be taken before us at the hearing of the appeal.14. It has to be remembered that, in order to enable a legal representative to continue a legal proceeding, the right to sue or to pursue a remedy must survive the death of his predecessor. In the instant case, we have set out provisions showing that the rights which an applicant may have had for the grant of a mining lease, on the strength of an alleged superior claim, cannot be separated from his personal qualifications. No provisions had been pointed out to us in the rules for impleading an heir who could continue the application for a mining lease. The scheme under the rules seems to be that, if an applicant dies a fresh application has to be presented by his heirs or legal representatives if they themselves desire to apply for the grant of a lease. It may be that the heirs and legal representatives, if they are continuing the business or industry of the deceased and have the required qualifications, obtain priority over an earlier applicant on account of special reasons for this preference. But, in each case, they have to apply afresh and set out their own qualifications. It has not been shown to us that any of the legal representatives have applied afresh. The legal representatives only claim to be entitled to succeed the deceased Buchivenkata Rao under a will. The assumption underlying the application is that, whatever right the deceased may have had to obtain a lease survived and vested in the heirs after his death. We are unable to accept the correctness of this assumption.15. In support of the contention on behalf of the heirs of Buchivenkata Rao, our attention was drawn to the case of Dhani Devi v. Sant Bihari, (1969) 2 SCR 507 = (AIR 1970 SC 759 ), which related to a right to obtain transfer of a permit for a motor vehicle under Section 61, sub-s (2) of the Motor Vehicles Act. It was held there that, in the case of the death of an applicant for the grant of a permit in respect of his motor vehicle, the Regional Transport Authority had the power to substitute the person succeeding to the possession of the vehicle in place of the deceased applicant. It was pointed out there that the right to the permit was related to the possession of the vehicle. Moreover, there was a rule enabling the Transport Authorities to substitute the heir or legal representatives of the deceased. No such rule applicable to the case of the heirs of the deceased Buchivenkata Rao has been pointed out to us. Therefore, we are unable to hold that the heirs, who have been heard, had any right to continue the appeal before us. This feature of the case is decisive not only on the right to be heard on the fresh ground but also on the right to advance any argument in support of the appeal of the deceased.16. We may mention that it was also urged that the matter was so old that any reversal of the grant of the mining lease to Venkatagiri, as long ago as 1960, would involve considerable dislocation and injury to respondent Venkatagiri without any fault on his part. The respondent Venkatagiri must have invested considerable amount of money in mining operations. The acceptance of the claim of Venkatagiri by the Government on the strength of which Venkatagiri made his investment cloths Venkatagiris claim with an equity which could not be defeated without clear proof of some over-riding legal right or interest of another claimant. We are unable to see any such right in the heirs of the deceased Buchivenkata Rao. | 0 | 3,178 | 1,791 | ### Instruction:
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on behalf of Rao.11. We may now refer to the fresh question which was sought to be raised on behalf of the appellant by means of an application before us. This was, that this Court had pointed out in N. Setharamaiah v. Kotaiah Naidu, (1971) 1 SCR 153 = (AIR 1970 SC 1354 ), that, on 15th September, 1956 the Mineral Concession Rules were amended and a new sub-rule 28 (1-A) was introduced which provided that every application under Rule 27, shall be disposed of within nine months from the date of its receipt, and had held that the effect of the amended Rule 57, which was further amended on 14-9-1956, was that an application remaining undisposed of within the period prescribed will be deemed to be rejected. It was urged that we should allow this point to be argued for the first time in this Court although it was neither raised nor argued in the High Court. It was submitted that this was a pure question of law on which no investigation of facts afresh was required.12. On the other hand, it has been contended, on behalf of the contesting respondent, that a new point should not be allowed to be urged at this stage for which reliance was placed on Bhagwati Saran v. State of Uttar Pradesh, (1961) 3 SCR 563 at p. 568 = (AIR 1961 SC 928 ); S. L. Aggarwal v. General Manager, Hindustan Steel Ltd. (1970) 3 SCR 363 at p. 365 = (AIR 1970 SC 1150 ); Chitra Ghost v. Union of India, (1970) 1 SCR 413 at 420 = (AIR 1970 SC 35 ).13. Even if we had been disposed to consider this new ground on the plea that exceptional circumstances justified our going into it, we must here point out another fact which affects the very maintainability of the appeal before us now. The appellant B. Rao died on 18-2-1970. His sons filed an application in this Court on 20-7-1970 for impleading them as the heirs and legal representatives of the deceased. This application was tentatively allowed, on 3-11-1970, under the order of the Registrar of this Court, subject to such objection to the rights of the substituted appellants to be heard and to continue this appeal on behalf of the deceased as may be taken before us at the hearing of the appeal.14. It has to be remembered that, in order to enable a legal representative to continue a legal proceeding, the right to sue or to pursue a remedy must survive the death of his predecessor. In the instant case, we have set out provisions showing that the rights which an applicant may have had for the grant of a mining lease, on the strength of an alleged superior claim, cannot be separated from his personal qualifications. No provisions had been pointed out to us in the rules for impleading an heir who could continue the application for a mining lease. The scheme under the rules seems to be that, if an applicant dies a fresh application has to be presented by his heirs or legal representatives if they themselves desire to apply for the grant of a lease. It may be that the heirs and legal representatives, if they are continuing the business or industry of the deceased and have the required qualifications, obtain priority over an earlier applicant on account of special reasons for this preference. But, in each case, they have to apply afresh and set out their own qualifications. It has not been shown to us that any of the legal representatives have applied afresh. The legal representatives only claim to be entitled to succeed the deceased Buchivenkata Rao under a will. The assumption underlying the application is that, whatever right the deceased may have had to obtain a lease survived and vested in the heirs after his death. We are unable to accept the correctness of this assumption.15. In support of the contention on behalf of the heirs of Buchivenkata Rao, our attention was drawn to the case of Dhani Devi v. Sant Bihari, (1969) 2 SCR 507 = (AIR 1970 SC 759 ), which related to a right to obtain transfer of a permit for a motor vehicle under Section 61, sub-s (2) of the Motor Vehicles Act. It was held there that, in the case of the death of an applicant for the grant of a permit in respect of his motor vehicle, the Regional Transport Authority had the power to substitute the person succeeding to the possession of the vehicle in place of the deceased applicant. It was pointed out there that the right to the permit was related to the possession of the vehicle. Moreover, there was a rule enabling the Transport Authorities to substitute the heir or legal representatives of the deceased. No such rule applicable to the case of the heirs of the deceased Buchivenkata Rao has been pointed out to us. Therefore, we are unable to hold that the heirs, who have been heard, had any right to continue the appeal before us. This feature of the case is decisive not only on the right to be heard on the fresh ground but also on the right to advance any argument in support of the appeal of the deceased.16. We may mention that it was also urged that the matter was so old that any reversal of the grant of the mining lease to Venkatagiri, as long ago as 1960, would involve considerable dislocation and injury to respondent Venkatagiri without any fault on his part. The respondent Venkatagiri must have invested considerable amount of money in mining operations. The acceptance of the claim of Venkatagiri by the Government on the strength of which Venkatagiri made his investment cloths Venkatagiris claim with an equity which could not be defeated without clear proof of some over-riding legal right or interest of another claimant. We are unable to see any such right in the heirs of the deceased Buchivenkata Rao.
### Response:
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### Explanation:
Government was vitiated on the third ground urged on behalf ofwas, that this Court had pointed out in N. Setharamaiah v. Kotaiah Naidu, (1971) 1 SCR 153 = (AIR 1970 SC 1354 ), that, on 15th September, 1956 the Mineral Concession Rules were amended and a new sub-rule 28 (1-A) was introduced which provided that every application under Rule 27, shall be disposed of within nine months from the date of its receipt, and had held that the effect of the amended Rule 57, which was further amended on 14-9-1956, was that an application remaining undisposed of within the period prescribed will be deemed to be rejected. It was urged that we should allow this point to be argued for the first time in this Court although it was neither raised nor argued in the High Court. It was submitted that this was a pure question of law on which no investigation of facts afresh was required.12. On the other hand, it has been contended, on behalf of the contesting respondent, that a new point should not be allowed to be urged at this stage for which reliance was placed on Bhagwati Saran v. State of Uttar Pradesh, (1961) 3 SCR 563 at p. 568 = (AIR 1961 SC 928 ); S. L. Aggarwal v. General Manager, Hindustan Steel Ltd. (1970) 3 SCR 363 at p. 365 = (AIR 1970 SC 1150 ); Chitra Ghost v. Union of India, (1970) 1 SCR 413 at 420 = (AIR 1970 SC 35 ).13. Even if we had been disposed to consider this new ground on the plea that exceptional circumstances justified our going into it, we must here point out another fact which affects the very maintainability of the appeal before us now. The appellant B. Rao died on 18-2-1970. His sons filed an application in this Court on 20-7-1970 for impleading them as the heirs and legal representatives of the deceased. This application was tentatively allowed, on 3-11-1970, under the order of the Registrar of this Court, subject to such objection to the rights of the substituted appellants to be heard and to continue this appeal on behalf of the deceased as may be taken before us at the hearing of the appeal.14. It has to be remembered that, in order to enable a legal representative to continue a legal proceeding, the right to sue or to pursue a remedy must survive the death of his predecessor. In the instant case, we have set out provisions showing that the rights which an applicant may have had for the grant of a mining lease, on the strength of an alleged superior claim, cannot be separated from his personal qualifications. No provisions had been pointed out to us in the rules for impleading an heir who could continue the application for a mining lease. The scheme under the rules seems to be that, if an applicant dies a fresh application has to be presented by his heirs or legal representatives if they themselves desire to apply for the grant of a lease. It may be that the heirs and legal representatives, if they are continuing the business or industry of the deceased and have the required qualifications, obtain priority over an earlier applicant on account of special reasons for this preference. But, in each case, they have to apply afresh and set out their own qualifications. It has not been shown to us that any of the legal representatives have applied afresh. The legal representatives only claim to be entitled to succeed the deceased Buchivenkata Rao under a will. The assumption underlying the application is that, whatever right the deceased may have had to obtain a lease survived and vested in the heirs after his death. We are unable to accept the correctness of this assumption.15. In support of the contention on behalf of the heirs of Buchivenkata Rao, our attention was drawn to the case of Dhani Devi v. Sant Bihari, (1969) 2 SCR 507 = (AIR 1970 SC 759 ), which related to a right to obtain transfer of a permit for a motor vehicle under Section 61, sub-s (2) of the Motor Vehicles Act. It was held there that, in the case of the death of an applicant for the grant of a permit in respect of his motor vehicle, the Regional Transport Authority had the power to substitute the person succeeding to the possession of the vehicle in place of the deceased applicant. It was pointed out there that the right to the permit was related to the possession of the vehicle. Moreover, there was a rule enabling the Transport Authorities to substitute the heir or legal representatives of the deceased. No such rule applicable to the case of the heirs of the deceased Buchivenkata Rao has been pointed out to us. Therefore, we are unable to hold that the heirs, who have been heard, had any right to continue the appeal before us. This feature of the case is decisive not only on the right to be heard on the fresh ground but also on the right to advance any argument in support of the appeal of the deceased.16. We may mention that it was also urged that the matter was so old that any reversal of the grant of the mining lease to Venkatagiri, as long ago as 1960, would involve considerable dislocation and injury to respondent Venkatagiri without any fault on his part. The respondent Venkatagiri must have invested considerable amount of money in mining operations. The acceptance of the claim of Venkatagiri by the Government on the strength of which Venkatagiri made his investment cloths Venkatagiris claim with an equity which could not be defeated without clear proof of some over-riding legal right or interest of another claimant. We are unable to see any such right in the heirs of the deceased Buchivenkata Rao.
|
DEGA VENKATA HARSHA VARDHAN Vs. AKULA VENTAKA HARSHAVARDHAN | to be offered to general category candidates. This principle is not attracted in cases of medical admissions. 21. Learned senior counsel appearing on behalf of the appellants argued, and rightly, that the High Court has erred in holding that reservation had been increased to more than 50% and has also erred in not properly appreciating the ratio laid down by this Court in Ritesh R. Sah, Samta Andolan Samiti and Tripurari Sharan (supra). While considering the data of academic year 2018-2019, as noted in para 43 of the judgment under appeal, the High Court had overlooked the fact that 203 meritorious candidates belonging to backward classes, who had ranked well and secured admission to open and/or general category seats, and were treated as general category candidates, have been shown as belonging to the backward classes. The number of candidates of the backward classes has therefore been shown as 588. If the 203 meritorious reserved class candidates of the general category are deducted from the total number of candidates of backward classes, the number of backward classes candidates of the reserved quota would only be 392. The 203 meritorious candidates are to be added to the number of open category candidates with addition of 203 to 469 the number of open category candidates would be 672. Thus, the High Court has committed a patent error in holding that reservation has exceeded 50%. According to counsel appearing for the appellants, the High Court has not correctly appreciated the implications of the change in the system of counseling from manual to online. The online programme is tuned in a way that eliminates the possibility of any deviation from the percentage of seats fixed for the respective categories. Thus, the decision of the High Court is not only contrary to the Full Bench decision of the same High Court but also against the decisions of this Court as by sliding down the open category MRC, the reservation does not exceed 50%. 22. The judgment and order under repeal is fraught with inconsistencies. In paragraph 59, the High Court purported to clarify that the High Court was not taking a view even remotely contrary to the law laid down by the Full Bench in Koganti Jayakrishna (supra) but, at the same time, proceeded to set aside paragraph 5(ii) of the impugned Government Order, which had been upheld in Koganti Jayakrishna (supra). 23. As observed above, the decision of the Full Bench was binding on the Division Bench. The impugned Government Order was not set aside by the subsequent Full Benches. The High Court has acted in flagrant breach of judicial discipline, in taking a decision, which is contrary to and inconsistent with a Full Court decision. If the High court found any divergence in the decisions of different Full Benches referred to in the judgment and order under appeal, the High court ought to have referred the question in issue to a larger Bench. Instead, the Division Bench of the High Court has, in effect, sat in appeal over the decision of its Full Bench. 24. As argued on behalf of the appellants, the validity of the impugned Government Order had been upheld in Koganti Jayakrishna (supra). The question should not, therefore, have been reopened by a Bench of lesser strength. Furthermore, the issue was no longer res integra in view of a catena of decisions of this Court including Ritesh R. Sah, Samta Aandolan Samiti and Tripurari Sharan (supra) where identical Government Orders had been questioned. 25. The impugned Government Order provides for two different rounds of counseling. The first round counseling for open category candidates is to be held as per the merit position alone, irrespective of whether the candidates belong to scheduled castes, scheduled tribes or backward classes. Even reserved category candidates, who qualify for admission on their own merit, have to be treated as open category candidates. The second round of counseling is for Scheduled Caste, Scheduled Tribe and Backward Class candidates. Paragraph 5(ii) of the impugned Government Order, as observed above gives a meritorious reserved category candidate the option of better discipline or better college of his choice for which he or she would be eligible as a reserved candidate and the seats vacated by such meritorious reserved category candidates would have to be filled from amongst candidates of the same category candidate only in the order of merit. 26. The impugned Government Order only provides for adjustment and interchange of seats between meritorious reserved category candidates selected under the open category and the reserved category candidates selected under the reserved quota. 27. The introduction of online counseling appears to have brought about some changes in the process of counseling which might necessitate an amendment of the impugned Government Order for complete harmony. Earlier, what was done in two stages is done in online system at first stage itself. The Andhra Pradesh Professional Educational Institutions (Regulation of Admissions into under-Graduate Professional Courses through Common Entrance Test) Rules, 1993 and in particular Rule 8(2) to thereof may also require amendment. However, the recent introduction of the online system could not have been a ground for setting aside the impugned notification which has been in force for seventeen years, and the validity whereof has been upheld by a Full Bench of the High Court. The judgment and order under appeal is unsustainable. 28. It appears that the procedure prescribed in the impugned Government Order cannot be implemented without some minor deviation consequential to the introduction of the system of online counseling. Such deviations do not in our view invalidate the admissions. It would, however, be open to the Government to amend the impugned Government Order and or alternatively issue a fresh Government Order to harmonies online counseling with statutory rules and government orders. The statutory rules may, if necessary, be amended. However, the admission made this year should not be disturbed. Any vacancies may be filled up on merit basis without disturbing the allocation of seats for candidates of the respective categories. | 1[ds]8. The law is well settled that provisions relating to reservation cannot work to the disadvantage of a Meritorious Reserved Candidate. A Meritorious Reserved Candidate cannot be placed at a more disadvantageous position than a less Meritorious Reserved Category candidate. Candidates from amongst the reserved category who would otherwise come in the open merit list are therefore given the choice of opting for reserved seats without affecting the total number of reserved seats. However, for the purpose of reservation, such a candidate would continue to be treated as an open category candidate and the seat as per his entitlement as a candidate of the general quota would go to a reserved candidate.9. In Tripurari Sharan and Another v. Ranjit Kumar Yadav and Others reported in (2018) 2 SCC 656 , the Supreme Court rejected the challenge to a similar Circular No. 226(24) dated 14.11.1995, which inter alia provided that a Meritorious Reserved Candidate, treated as general merit candidate and allotted a seat in the general merit category might instead, choose a seat from amongst the seats earmarked for that particular reserved category to which he belonged, to gain admission in the college of his preference and on doing so the seat left by the Meritorious Reserved Candidate would go to a candidate of the same reserved category.10. In Tripurari Sharan (supra) this court held:11. This Court has repeatedly, including the judgment in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1], concluded that the aggregate reservation should not exceed 50%. Therefore, even when an MRC opts for a seat reserved for reserved category candidates, caution has to be exercised to maintain the reservation to 50%. So also it is not open for the authorities to deny an MRC a seat in the college of his preference based on his merit, if such seat is available at the relevant point of time and the same is reserved for candidates of the reserved category to which the MRC belongs. This is because there may be instances where an MRC may not get a seat in the institution of his choice on the basis of his own merit in the general merit. Under such circumstances, he may opt to be treated notionally as a candidate belonging to the reserved category only for the purpose of getting a seat in the college reserved for reserved category students. If such MRC is to be placed in the reserved merit list of his category, he would be ranking high and may get better choice of institution or course. An MRC cannot be placed in a disadvantageous position by not permitting him to be treated as reserved candidate, as that would amount to making him suffer for his better performance in the competitive examination.11. In Ritesh R. Sah v. Dr. Y.L. Yamul and Others reported in (1996) 3 SCC 253 , this Court held that a meritorious reserved category Candidate who had qualified for admission on his own merit by reason of his general over all rank, could opt for a reserved seat in a discipline/college of his choice. However, on exercise of such option, the meritorious reserved category candidate would be treated as a candidate of the general category and not of the reserved category. The meritorious reserved category candidate might opt for a seat reserved for the class to which he belongs, only for the limited purpose of getting a better choice of seat.13. In Samta Aandolan Samiti and Another v. Union of India reported in (2014) 14 SCC 745 , this Court, relying upon its earlier decisions in Indra Sawhney (supra) and Ramesh Ram (supra), held:16......It is now a well-entrenched principle of law that those members belonging to the reserved category who get selected in the open competition on the basis of their own merit have a right to be included in the general list/unreserved category and not to be counted against the quota reserved for Scheduled Castes. This was recognised by the Constitution Bench judgment of this Court in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] and has been followed in a series of judgments thereafter. Thus, when certain persons belonging to the reserved category get selected in open competition on the basis of their merit, they are not to be counted in the reserved category against the reserved category quota. It is open to the authorities to fill the posts meant for reserved category candidates from amongst the persons in such categories after excluding those who have found their place in general merit. As a fortiori, while calculating the limit of 50% reservation, those candidates belonging to reserved category who have found their place on the basis of their merit competing with general candidates are not to be taken into consideration. It is also not in dispute that such OBC/SC candidates who have been included in general category have come in that category on their own merit with no relaxation of the eligibility level i.e. percentage of marks........* * * * * *19. It is stated at the cost of repetition that those members who belong to reserved category but get selected in the open competition on the basis of their own merit have a right to be included in the general/unreserved category. Such MRC are not to be included in the quota reserved for the Scheduled Castes, etc. It is an admitted position that if these persons are excluded, the respondents have not exceeded the quota meant for the reserved category. The respondents, at the time of counseling, have only accorded a higher/better choice to these meritorious reserved candidates (MRC) who got recommended against general/unreserved seats visd-vis those reserved category candidates who are accommodated against their quota. It is, therefore, an inter se adjustment between the two kinds of persons belonging to the reserved category. In their inter se merit, these persons who have been able to find their place in general list on account of their merit are definitely better placed than those candidates who are selected in the reserved category, though both types of candidates belong to the reserved category. Thus, if between these two categories of persons belonging to the same class, higher choice is not given to the persons who are better in merit viz. the MRCs, it would clearly be injustice to them. This was precisely the issue which was referred for decision to the Constitution Bench in Ramesh Ram [Union of India v. Ramesh Ram, (2010) 7 SCC 234 : (2010) 2 SCC (L&S) 412]............* * * * * *21. Dealing with the first question which directly arises in the present case, the Court in Ramesh Ram case [Union of India v. Ramesh Ram, (2010) 7 SCC 234 : (2010) 2 SCC (L&S) 412] clarified that a distinction is to be maintained between the cases dealing with the admission to educational institutions and appointment to a service. The Court accepted the general proposition that such a course of action affords meritorious reserved candidates (MRC), the benefit of reservation insofar as service allocation is concerned, if this is not done, lesser meritorious reserved candidates would be able to secure a better discipline. Therefore, this course of action preserves and protects inter se merit amongst the reserved candidates.* * * * * *24. Since we are concerned with the admission to a medical course, the aforesaid judgment in Ramesh Ram case [Union of India v. Ramesh Ram, (2010) 7 SCC 234 : (2010) 2 SCC (L&S) 412] squarely applies to the present case. Thus we find that neither is the upper limit of 50% reservation breached, nor are any rights of the petitioners violated or the action of the respondents have been to their prejudice in any manner. Thus, we do not find any merit in the present petition, which is accordingly dismissed. No costs.18. It is true, as observed by the High Court, that the decisions of this Court, referred to above proceed on the premise that a Meritorious Reserved Category candidate continues to be an open category candidate, despite sliding down, to opt for a reserved seat. However, the finding of the High Court that this does not happen anymore, under the online system of counseling is misconceived. The reasoning of the High Court for its finding as aforesaid is not clear and smacks of apparent confusion. The comparative example of the possibility that a Meritorious Reserved Category candidate belonging to the Scheduled Castes who slides down to a reserved post of his choice might lose the benefit of reservation in the matter of promotion, if he continues to be treated as an open category candidate is misconceived since there is no scope for promotion in case of admission to education institutions, conducting undergraduate medical courses.20. In the case of Civil Services Examinations, some services are more coveted than others and successful candidates compete amongst themselves to secure services of their choice. A meritorious reserved category candidate, who qualifies on his own merit to get a rank in the general list, should not be disadvantaged by reason of being assigned a less coveted service against the vacancies in the general category. Such a candidate, can therefore, choose to shift to the reserved category under Rule 16(2) of the Civil Services Examinations Rules. However, meritorious reserved category candidates who avail the benefit of Rule 16(2) and are adjusted in the reserved category are to be counted in the reserved quota and the seats vacated by meritorious reserved candidates in the general category pool are to be offered to general category candidates. This principle is not attracted in cases of medical admissions.21. Learned senior counsel appearing on behalf of the appellants argued, and rightly, that the High Court has erred in holding that reservation had been increased to more than 50% and has also erred in not properly appreciating the ratio laid down by this Court in Ritesh R. Sah, Samta Andolan Samiti and Tripurari Sharan (supra). While considering the data of academic year 2018-2019, as noted in para 43 of the judgment under appeal, the High Court had overlooked the fact that 203 meritorious candidates belonging to backward classes, who had ranked well and secured admission to open and/or general category seats, and were treated as general category candidates, have been shown as belonging to the backward classes. The number of candidates of the backward classes has therefore been shown as 588. If the 203 meritorious reserved class candidates of the general category are deducted from the total number of candidates of backward classes, the number of backward classes candidates of the reserved quota would only be 392. The 203 meritorious candidates are to be added to the number of open category candidates with addition of 203 to 469 the number of open category candidates would be 672. Thus, the High Court has committed a patent error in holding that reservation has exceeded 50%. According to counsel appearing for the appellants, the High Court has not correctly appreciated the implications of the change in the system of counseling from manual to online. The online programme is tuned in a way that eliminates the possibility of any deviation from the percentage of seats fixed for the respective categories. Thus, the decision of the High Court is not only contrary to the Full Bench decision of the same High Court but also against the decisions of this Court as by sliding down the open category MRC, the reservation does not exceed 50%.22. The judgment and order under repeal is fraught with inconsistencies. In paragraph 59, the High Court purported to clarify that the High Court was not taking a view even remotely contrary to the law laid down by the Full Bench in Koganti Jayakrishna (supra) but, at the same time, proceeded to set aside paragraph 5(ii) of the impugned Government Order, which had been upheld in Koganti Jayakrishna (supra).23. As observed above, the decision of the Full Bench was binding on the Division Bench. The impugned Government Order was not set aside by the subsequent Full Benches. The High Court has acted in flagrant breach of judicial discipline, in taking a decision, which is contrary to and inconsistent with a Full Court decision. If the High court found any divergence in the decisions of different Full Benches referred to in the judgment and order under appeal, the High court ought to have referred the question in issue to a larger Bench. Instead, the Division Bench of the High Court has, in effect, sat in appeal over the decision of its Full Bench.24. As argued on behalf of the appellants, the validity of the impugned Government Order had been upheld in Koganti Jayakrishna (supra). The question should not, therefore, have been reopened by a Bench of lesser strength. Furthermore, the issue was no longer res integra in view of a catena of decisions of this Court including Ritesh R. Sah, Samta Aandolan Samiti and Tripurari Sharan (supra) where identical Government Orders had been questioned.25. The impugned Government Order provides for two different rounds of counseling. The first round counseling for open category candidates is to be held as per the merit position alone, irrespective of whether the candidates belong to scheduled castes, scheduled tribes or backward classes. Even reserved category candidates, who qualify for admission on their own merit, have to be treated as open category candidates. The second round of counseling is for Scheduled Caste, Scheduled Tribe and Backward Class candidates. Paragraph 5(ii) of the impugned Government Order, as observed above gives a meritorious reserved category candidate the option of better discipline or better college of his choice for which he or she would be eligible as a reserved candidate and the seats vacated by such meritorious reserved category candidates would have to be filled from amongst candidates of the same category candidate only in the order of merit.26. The impugned Government Order only provides for adjustment and interchange of seats between meritorious reserved category candidates selected under the open category and the reserved category candidates selected under the reserved quota.27. The introduction of online counseling appears to have brought about some changes in the process of counseling which might necessitate an amendment of the impugned Government Order for complete harmony. Earlier, what was done in two stages is done in online system at first stage itself. The Andhra Pradesh Professional Educational Institutions (Regulation of Admissions into under-Graduate Professional Courses through Common Entrance Test) Rules, 1993 and in particular Rule 8(2) to thereof may also require amendment. However, the recent introduction of the online system could not have been a ground for setting aside the impugned notification which has been in force for seventeen years, and the validity whereof has been upheld by a Full Bench of the High Court. The judgment and order under appeal is unsustainable.28. It appears that the procedure prescribed in the impugned Government Order cannot be implemented without some minor deviation consequential to the introduction of the system of online counseling. Such deviations do not in our view invalidate the admissions. It would, however, be open to the Government to amend the impugned Government Order and or alternatively issue a fresh Government Order to harmonies online counseling with statutory rules and government orders. The statutory rules may, if necessary, be amended. However, the admission made this year should not be disturbed. Any vacancies may be filled up on merit basis without disturbing the allocation of seats for candidates of the respective categories. | 1 | 6,441 | 2,914 | ### 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:
to be offered to general category candidates. This principle is not attracted in cases of medical admissions. 21. Learned senior counsel appearing on behalf of the appellants argued, and rightly, that the High Court has erred in holding that reservation had been increased to more than 50% and has also erred in not properly appreciating the ratio laid down by this Court in Ritesh R. Sah, Samta Andolan Samiti and Tripurari Sharan (supra). While considering the data of academic year 2018-2019, as noted in para 43 of the judgment under appeal, the High Court had overlooked the fact that 203 meritorious candidates belonging to backward classes, who had ranked well and secured admission to open and/or general category seats, and were treated as general category candidates, have been shown as belonging to the backward classes. The number of candidates of the backward classes has therefore been shown as 588. If the 203 meritorious reserved class candidates of the general category are deducted from the total number of candidates of backward classes, the number of backward classes candidates of the reserved quota would only be 392. The 203 meritorious candidates are to be added to the number of open category candidates with addition of 203 to 469 the number of open category candidates would be 672. Thus, the High Court has committed a patent error in holding that reservation has exceeded 50%. According to counsel appearing for the appellants, the High Court has not correctly appreciated the implications of the change in the system of counseling from manual to online. The online programme is tuned in a way that eliminates the possibility of any deviation from the percentage of seats fixed for the respective categories. Thus, the decision of the High Court is not only contrary to the Full Bench decision of the same High Court but also against the decisions of this Court as by sliding down the open category MRC, the reservation does not exceed 50%. 22. The judgment and order under repeal is fraught with inconsistencies. In paragraph 59, the High Court purported to clarify that the High Court was not taking a view even remotely contrary to the law laid down by the Full Bench in Koganti Jayakrishna (supra) but, at the same time, proceeded to set aside paragraph 5(ii) of the impugned Government Order, which had been upheld in Koganti Jayakrishna (supra). 23. As observed above, the decision of the Full Bench was binding on the Division Bench. The impugned Government Order was not set aside by the subsequent Full Benches. The High Court has acted in flagrant breach of judicial discipline, in taking a decision, which is contrary to and inconsistent with a Full Court decision. If the High court found any divergence in the decisions of different Full Benches referred to in the judgment and order under appeal, the High court ought to have referred the question in issue to a larger Bench. Instead, the Division Bench of the High Court has, in effect, sat in appeal over the decision of its Full Bench. 24. As argued on behalf of the appellants, the validity of the impugned Government Order had been upheld in Koganti Jayakrishna (supra). The question should not, therefore, have been reopened by a Bench of lesser strength. Furthermore, the issue was no longer res integra in view of a catena of decisions of this Court including Ritesh R. Sah, Samta Aandolan Samiti and Tripurari Sharan (supra) where identical Government Orders had been questioned. 25. The impugned Government Order provides for two different rounds of counseling. The first round counseling for open category candidates is to be held as per the merit position alone, irrespective of whether the candidates belong to scheduled castes, scheduled tribes or backward classes. Even reserved category candidates, who qualify for admission on their own merit, have to be treated as open category candidates. The second round of counseling is for Scheduled Caste, Scheduled Tribe and Backward Class candidates. Paragraph 5(ii) of the impugned Government Order, as observed above gives a meritorious reserved category candidate the option of better discipline or better college of his choice for which he or she would be eligible as a reserved candidate and the seats vacated by such meritorious reserved category candidates would have to be filled from amongst candidates of the same category candidate only in the order of merit. 26. The impugned Government Order only provides for adjustment and interchange of seats between meritorious reserved category candidates selected under the open category and the reserved category candidates selected under the reserved quota. 27. The introduction of online counseling appears to have brought about some changes in the process of counseling which might necessitate an amendment of the impugned Government Order for complete harmony. Earlier, what was done in two stages is done in online system at first stage itself. The Andhra Pradesh Professional Educational Institutions (Regulation of Admissions into under-Graduate Professional Courses through Common Entrance Test) Rules, 1993 and in particular Rule 8(2) to thereof may also require amendment. However, the recent introduction of the online system could not have been a ground for setting aside the impugned notification which has been in force for seventeen years, and the validity whereof has been upheld by a Full Bench of the High Court. The judgment and order under appeal is unsustainable. 28. It appears that the procedure prescribed in the impugned Government Order cannot be implemented without some minor deviation consequential to the introduction of the system of online counseling. Such deviations do not in our view invalidate the admissions. It would, however, be open to the Government to amend the impugned Government Order and or alternatively issue a fresh Government Order to harmonies online counseling with statutory rules and government orders. The statutory rules may, if necessary, be amended. However, the admission made this year should not be disturbed. Any vacancies may be filled up on merit basis without disturbing the allocation of seats for candidates of the respective categories.
### Response:
1
### Explanation:
reserved candidates in the general category pool are to be offered to general category candidates. This principle is not attracted in cases of medical admissions.21. Learned senior counsel appearing on behalf of the appellants argued, and rightly, that the High Court has erred in holding that reservation had been increased to more than 50% and has also erred in not properly appreciating the ratio laid down by this Court in Ritesh R. Sah, Samta Andolan Samiti and Tripurari Sharan (supra). While considering the data of academic year 2018-2019, as noted in para 43 of the judgment under appeal, the High Court had overlooked the fact that 203 meritorious candidates belonging to backward classes, who had ranked well and secured admission to open and/or general category seats, and were treated as general category candidates, have been shown as belonging to the backward classes. The number of candidates of the backward classes has therefore been shown as 588. If the 203 meritorious reserved class candidates of the general category are deducted from the total number of candidates of backward classes, the number of backward classes candidates of the reserved quota would only be 392. The 203 meritorious candidates are to be added to the number of open category candidates with addition of 203 to 469 the number of open category candidates would be 672. Thus, the High Court has committed a patent error in holding that reservation has exceeded 50%. According to counsel appearing for the appellants, the High Court has not correctly appreciated the implications of the change in the system of counseling from manual to online. The online programme is tuned in a way that eliminates the possibility of any deviation from the percentage of seats fixed for the respective categories. Thus, the decision of the High Court is not only contrary to the Full Bench decision of the same High Court but also against the decisions of this Court as by sliding down the open category MRC, the reservation does not exceed 50%.22. The judgment and order under repeal is fraught with inconsistencies. In paragraph 59, the High Court purported to clarify that the High Court was not taking a view even remotely contrary to the law laid down by the Full Bench in Koganti Jayakrishna (supra) but, at the same time, proceeded to set aside paragraph 5(ii) of the impugned Government Order, which had been upheld in Koganti Jayakrishna (supra).23. As observed above, the decision of the Full Bench was binding on the Division Bench. The impugned Government Order was not set aside by the subsequent Full Benches. The High Court has acted in flagrant breach of judicial discipline, in taking a decision, which is contrary to and inconsistent with a Full Court decision. If the High court found any divergence in the decisions of different Full Benches referred to in the judgment and order under appeal, the High court ought to have referred the question in issue to a larger Bench. Instead, the Division Bench of the High Court has, in effect, sat in appeal over the decision of its Full Bench.24. As argued on behalf of the appellants, the validity of the impugned Government Order had been upheld in Koganti Jayakrishna (supra). The question should not, therefore, have been reopened by a Bench of lesser strength. Furthermore, the issue was no longer res integra in view of a catena of decisions of this Court including Ritesh R. Sah, Samta Aandolan Samiti and Tripurari Sharan (supra) where identical Government Orders had been questioned.25. The impugned Government Order provides for two different rounds of counseling. The first round counseling for open category candidates is to be held as per the merit position alone, irrespective of whether the candidates belong to scheduled castes, scheduled tribes or backward classes. Even reserved category candidates, who qualify for admission on their own merit, have to be treated as open category candidates. The second round of counseling is for Scheduled Caste, Scheduled Tribe and Backward Class candidates. Paragraph 5(ii) of the impugned Government Order, as observed above gives a meritorious reserved category candidate the option of better discipline or better college of his choice for which he or she would be eligible as a reserved candidate and the seats vacated by such meritorious reserved category candidates would have to be filled from amongst candidates of the same category candidate only in the order of merit.26. The impugned Government Order only provides for adjustment and interchange of seats between meritorious reserved category candidates selected under the open category and the reserved category candidates selected under the reserved quota.27. The introduction of online counseling appears to have brought about some changes in the process of counseling which might necessitate an amendment of the impugned Government Order for complete harmony. Earlier, what was done in two stages is done in online system at first stage itself. The Andhra Pradesh Professional Educational Institutions (Regulation of Admissions into under-Graduate Professional Courses through Common Entrance Test) Rules, 1993 and in particular Rule 8(2) to thereof may also require amendment. However, the recent introduction of the online system could not have been a ground for setting aside the impugned notification which has been in force for seventeen years, and the validity whereof has been upheld by a Full Bench of the High Court. The judgment and order under appeal is unsustainable.28. It appears that the procedure prescribed in the impugned Government Order cannot be implemented without some minor deviation consequential to the introduction of the system of online counseling. Such deviations do not in our view invalidate the admissions. It would, however, be open to the Government to amend the impugned Government Order and or alternatively issue a fresh Government Order to harmonies online counseling with statutory rules and government orders. The statutory rules may, if necessary, be amended. However, the admission made this year should not be disturbed. Any vacancies may be filled up on merit basis without disturbing the allocation of seats for candidates of the respective categories.
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State Vs. Girdharlal Bajaj & Another | or salary in the service of an employer" .. .. .. ... .. .. ...It seems to us that the word "employee" as used in section 419 of the Indian Companies Act, has been used in contra-distinction to the word "employer" and that in the use of the word "employee" the legislature contemplated the existence of a relationship of master and servant or what is the same thing between the employer and the employee. Obviously, an employee would be a person under the control of the employer and would be bound to obey the orders of the employer not only as to the work which he shall execute, but also as to the details of the work and the manner of its execution. The attributes of an employee have been stated with clarity in Diamonds Law of Master and Servant, Second Edition, at pages 1 and 2. The word "employee" used in section 419 cannot, in our opinion, in the absence of anything contained in the section itself, or in the statute, carry any higher or other meaning. It seems to us then that there is no doubt or difficulty here as to the interpretation of the word "employee" used in section 419 and, so it is not necessary to go back to a consideration of the scope and object of the legislation.15. Mr. Khambatta also placed before us a number of anomalies which would arise if this interpretation were to be accepted. He pointed out that if the interpretation be correct, the moment the master chooses to give a notice to the employee terminating his contract of service, the right of inspection would be at an end yet his right to receive his provident fund amount would subsist. There would therefore be no meaning in saying that the right of inspection is a right given only in aid of the larger right to the provident fund itself. The argument, is no doubt well taken but cannot affect the question of interpretation. Moreover, it seems to us that when sections 417, 418, 419 and 420 of the Indian Companies Act, were enacted, the present-day notions of social justice between employer and employee were not the same and it is conceivable that the legislature may have thought that upon termination of the contract of service the employee should be relegated to his normal remedies of a suit and the normal remedies which the employee has to safeguard the payment of provident fund amount pending his suit, such as are given to him by the Code of Civil Procedure. It seems to us that the legislature contemplated that it would be a serious inroad upon the rights of the employer to permit the employee who has ceased to be an employee, to inspect the securities and Bank receipts for moneys of his former employer. If is not as if the employee whose contract of service has been terminated would be entirely without a remedy. Upon the termination of his services, his right would be an immediate right to the receipt of the provident fund amount, whereas during the continuance of his contract of service he has no right to recover the provident fund amount from the employer or the trustees. Hence, the difference in the remedies made available to the employee and the consequent difference in the right to inspect.16. On behalf of the accused Mr. Amin raised a number of other contentions, particularly that the right of inspection conferred upon the complainant, if any was a right personal to him and that in this case no demand was made for inspection by the complainant himself, but that on the other hand, his attorneys letter showed that they had asked for inspection for themselves a right which section 419 does not confer on them. The other contention which was raised was that the employers have not in the instant case "knowingly" contravened or authorised or permitted the contravention of the provisions of section 419, and Mr. Amin set forth a number of circumstances from which absence of knowledge could be inferred. We need not decide these contentions because of the view which we have taken of the provisions of Sec.419 itself if that the word "employee" means an employee as such and not an ex-employee or past employee or a person whose contract of service has been put an end to.17. In the course of the arguments at the Bar it was alleged, but controverted, that the employers to this case have not set apart the amounts of the contribution of their employees, nor kept or deposited them in a special account, but that, on the other hand, the trustees have permitted the moneys and securities to be utilised by the company for its own purposes. In view of these allegations, when the matter came up before us at the last hearing on 10th February 1961, we had ordered the respondents 1 and 2, who were admittedly trustees of the Provident Fund, to file an affidavit stating whether the amount of the provident fund of its employees has been set apart in a separate account or not and whether it was separately invested or not and if invested in what securities. We had also asked them to furnish a statement showing the date from which the provident fund amount had been kept apart and/or invested. While, no doubt, Mr. Amin had contended at the hearing that he was not in a position to state whether an affidavit would be filed or not, Mr. Shellim Samuel has stated before us today that in spite of an intimation to respondents Nos.1 and 2, they do not intend to file such an affidavit. The refusal on the part of the respondents Nos.1 and 2 to place the facts before the Court undoubtedly indicates that in all probability they have not complied with the provisions of section 417(1) and (2) and that that is the reason why a clear affidavit could not be filed by them. | 0[ds]9. The right which section 419 of the Indian Companies Act, confers upon the employee to see the Banks receipt for moneys or securities pertaining to his Provident Fund Account, is conferred upon him by theLooking to the language used in Sec.419, it would appear that the words of the section would ordinarily admit of no doubt of difficulty and that when the section uses the word "employee", it means an employee.The decision to which we have just referred undoubtedly laid down that the words of a statute, when there is doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view. Their meaning is to be found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or the occasion on which they are used, or the object to be attained.The passage which we have juststates the exception and not the general rule. The passage itself indicates that the first and cardinal rule of construction of a statute is to give effect to the words of the statute; but that it is only in exceptional cases where there is any doubt or difficulty as to the interpretation of the statute or any word thereof, that the Court can legitimately look to the object of the enactment or in the purpose for which it was made.12a. We have already observed that upon a plain reading of section 419 of the Indian Companies Act, 1956, it would appear that there is no such doubt orwill be clear from the passage which we have quoted above, that the decision in Wilkinsons case (1948) 1 KB 721 turned upon the particular provisions of the statute which fell to be construed in that case, namely, the Local Government Act, 1937, and it was because that Court found in the statute itself an indication that the word "contributory employee" could include anor past employee that they interpreted the word "employee" as having the same connotation. That is not the position here so far as the provisions of the Indian Companies Act are concerned. Neither do the words "contributory employee" occur in the Indian Companies Act; nor is the word "employee" anywhere defined. Moreover, their is no other indication in the Act that when the Legislature used the word "employee," they might have intended to refer to anor past employee. Therefore, it can be given only its normalseems to us that the word "employee" as used in section 419 of the Indian Companies Act, has been used into the word "employer" and that in the use of the word "employee" the legislature contemplated the existence of a relationship of master and servant or what is the same thing between the employer and the employee. Obviously, an employee would be a person under the control of the employer and would be bound to obey the orders of the employer not only as to the work which he shall execute, but also as to the details of the work and the manner of its execution. The attributes of an employee have been stated with clarity in Diamonds Law of Master and Servant, Second Edition, at pages 1 and 2. The word "employee" used in section 419 cannot, in our opinion, in the absence of anything contained in the section itself, or in the statute, carry any higher or other meaning. It seems to us then that there is no doubt or difficulty here as to the interpretation of the word "employee" used in section 419 and, so it is not necessary to go back to a consideration of the scope and object of theargument, is no doubt well taken but cannot affect the question of interpretation. Moreover, it seems to us that when sections 417, 418, 419 and 420 of the Indian Companies Act, were enacted, thenotions of social justice between employer and employee were not the same and it is conceivable that the legislature may have thought that upon termination of the contract of service the employee should be relegated to his normal remedies of a suit and the normal remedies which the employee has to safeguard the payment of provident fund amount pending his suit, such as are given to him by the Code of Civil Procedure. It seems to us that the legislature contemplated that it would be a serious inroad upon the rights of the employer to permit the employee who has ceased to be an employee, to inspect the securities and Bank receipts for moneys of his former employer. If is not as if the employee whose contract of service has been terminated would be entirely without a remedy. Upon the termination of his services, his right would be an immediate right to the receipt of the provident fund amount, whereas during the continuance of his contract of service he has no right to recover the provident fund amount from the employer or the trustees. Hence, the difference in the remedies made available to the employee and the consequent difference in the right toneed not decide these contentions because of the view which we have taken of the provisions of Sec.419 itself if that the word "employee" means an employee as such and not anor past employee or a person whose contract of service has been put an end to.17. In the course of the arguments at the Bar it was alleged, but controverted, that the employers to this case have not set apart the amounts of the contribution of their employees, nor kept or deposited them in a special account, but that, on the other hand, the trustees have permitted the moneys and securities to be utilised by the company for its own purposes. In view of these allegations, when the matter came up before us at the last hearing on 10th February 1961, we had ordered the respondents 1 and 2, who were admittedly trustees of the Provident Fund, to file an affidavit stating whether the amount of the provident fund of its employees has been set apart in a separate account or not and whether it was separately invested or not and if invested in what securities. We had also asked them to furnish a statement showing the date from which the provident fund amount had been kept apart and/or invested. While, no doubt, Mr. Amin had contended at the hearing that he was not in a position to state whether an affidavit would be filed or not, Mr. Shellim Samuel has stated before us today that in spite of an intimation to respondents Nos.1 and 2, they do not intend to file such an affidavit. The refusal on the part of the respondents Nos.1 and 2 to place the facts before the Court undoubtedly indicates that in all probability they have not complied with the provisions of section 417(1) and (2) and that that is the reason why a clear affidavit could not be filed by them. | 0 | 3,845 | 1,296 | ### 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:
or salary in the service of an employer" .. .. .. ... .. .. ...It seems to us that the word "employee" as used in section 419 of the Indian Companies Act, has been used in contra-distinction to the word "employer" and that in the use of the word "employee" the legislature contemplated the existence of a relationship of master and servant or what is the same thing between the employer and the employee. Obviously, an employee would be a person under the control of the employer and would be bound to obey the orders of the employer not only as to the work which he shall execute, but also as to the details of the work and the manner of its execution. The attributes of an employee have been stated with clarity in Diamonds Law of Master and Servant, Second Edition, at pages 1 and 2. The word "employee" used in section 419 cannot, in our opinion, in the absence of anything contained in the section itself, or in the statute, carry any higher or other meaning. It seems to us then that there is no doubt or difficulty here as to the interpretation of the word "employee" used in section 419 and, so it is not necessary to go back to a consideration of the scope and object of the legislation.15. Mr. Khambatta also placed before us a number of anomalies which would arise if this interpretation were to be accepted. He pointed out that if the interpretation be correct, the moment the master chooses to give a notice to the employee terminating his contract of service, the right of inspection would be at an end yet his right to receive his provident fund amount would subsist. There would therefore be no meaning in saying that the right of inspection is a right given only in aid of the larger right to the provident fund itself. The argument, is no doubt well taken but cannot affect the question of interpretation. Moreover, it seems to us that when sections 417, 418, 419 and 420 of the Indian Companies Act, were enacted, the present-day notions of social justice between employer and employee were not the same and it is conceivable that the legislature may have thought that upon termination of the contract of service the employee should be relegated to his normal remedies of a suit and the normal remedies which the employee has to safeguard the payment of provident fund amount pending his suit, such as are given to him by the Code of Civil Procedure. It seems to us that the legislature contemplated that it would be a serious inroad upon the rights of the employer to permit the employee who has ceased to be an employee, to inspect the securities and Bank receipts for moneys of his former employer. If is not as if the employee whose contract of service has been terminated would be entirely without a remedy. Upon the termination of his services, his right would be an immediate right to the receipt of the provident fund amount, whereas during the continuance of his contract of service he has no right to recover the provident fund amount from the employer or the trustees. Hence, the difference in the remedies made available to the employee and the consequent difference in the right to inspect.16. On behalf of the accused Mr. Amin raised a number of other contentions, particularly that the right of inspection conferred upon the complainant, if any was a right personal to him and that in this case no demand was made for inspection by the complainant himself, but that on the other hand, his attorneys letter showed that they had asked for inspection for themselves a right which section 419 does not confer on them. The other contention which was raised was that the employers have not in the instant case "knowingly" contravened or authorised or permitted the contravention of the provisions of section 419, and Mr. Amin set forth a number of circumstances from which absence of knowledge could be inferred. We need not decide these contentions because of the view which we have taken of the provisions of Sec.419 itself if that the word "employee" means an employee as such and not an ex-employee or past employee or a person whose contract of service has been put an end to.17. In the course of the arguments at the Bar it was alleged, but controverted, that the employers to this case have not set apart the amounts of the contribution of their employees, nor kept or deposited them in a special account, but that, on the other hand, the trustees have permitted the moneys and securities to be utilised by the company for its own purposes. In view of these allegations, when the matter came up before us at the last hearing on 10th February 1961, we had ordered the respondents 1 and 2, who were admittedly trustees of the Provident Fund, to file an affidavit stating whether the amount of the provident fund of its employees has been set apart in a separate account or not and whether it was separately invested or not and if invested in what securities. We had also asked them to furnish a statement showing the date from which the provident fund amount had been kept apart and/or invested. While, no doubt, Mr. Amin had contended at the hearing that he was not in a position to state whether an affidavit would be filed or not, Mr. Shellim Samuel has stated before us today that in spite of an intimation to respondents Nos.1 and 2, they do not intend to file such an affidavit. The refusal on the part of the respondents Nos.1 and 2 to place the facts before the Court undoubtedly indicates that in all probability they have not complied with the provisions of section 417(1) and (2) and that that is the reason why a clear affidavit could not be filed by them.
### Response:
0
### Explanation:
that the first and cardinal rule of construction of a statute is to give effect to the words of the statute; but that it is only in exceptional cases where there is any doubt or difficulty as to the interpretation of the statute or any word thereof, that the Court can legitimately look to the object of the enactment or in the purpose for which it was made.12a. We have already observed that upon a plain reading of section 419 of the Indian Companies Act, 1956, it would appear that there is no such doubt orwill be clear from the passage which we have quoted above, that the decision in Wilkinsons case (1948) 1 KB 721 turned upon the particular provisions of the statute which fell to be construed in that case, namely, the Local Government Act, 1937, and it was because that Court found in the statute itself an indication that the word "contributory employee" could include anor past employee that they interpreted the word "employee" as having the same connotation. That is not the position here so far as the provisions of the Indian Companies Act are concerned. Neither do the words "contributory employee" occur in the Indian Companies Act; nor is the word "employee" anywhere defined. Moreover, their is no other indication in the Act that when the Legislature used the word "employee," they might have intended to refer to anor past employee. Therefore, it can be given only its normalseems to us that the word "employee" as used in section 419 of the Indian Companies Act, has been used into the word "employer" and that in the use of the word "employee" the legislature contemplated the existence of a relationship of master and servant or what is the same thing between the employer and the employee. Obviously, an employee would be a person under the control of the employer and would be bound to obey the orders of the employer not only as to the work which he shall execute, but also as to the details of the work and the manner of its execution. The attributes of an employee have been stated with clarity in Diamonds Law of Master and Servant, Second Edition, at pages 1 and 2. The word "employee" used in section 419 cannot, in our opinion, in the absence of anything contained in the section itself, or in the statute, carry any higher or other meaning. It seems to us then that there is no doubt or difficulty here as to the interpretation of the word "employee" used in section 419 and, so it is not necessary to go back to a consideration of the scope and object of theargument, is no doubt well taken but cannot affect the question of interpretation. Moreover, it seems to us that when sections 417, 418, 419 and 420 of the Indian Companies Act, were enacted, thenotions of social justice between employer and employee were not the same and it is conceivable that the legislature may have thought that upon termination of the contract of service the employee should be relegated to his normal remedies of a suit and the normal remedies which the employee has to safeguard the payment of provident fund amount pending his suit, such as are given to him by the Code of Civil Procedure. It seems to us that the legislature contemplated that it would be a serious inroad upon the rights of the employer to permit the employee who has ceased to be an employee, to inspect the securities and Bank receipts for moneys of his former employer. If is not as if the employee whose contract of service has been terminated would be entirely without a remedy. Upon the termination of his services, his right would be an immediate right to the receipt of the provident fund amount, whereas during the continuance of his contract of service he has no right to recover the provident fund amount from the employer or the trustees. Hence, the difference in the remedies made available to the employee and the consequent difference in the right toneed not decide these contentions because of the view which we have taken of the provisions of Sec.419 itself if that the word "employee" means an employee as such and not anor past employee or a person whose contract of service has been put an end to.17. In the course of the arguments at the Bar it was alleged, but controverted, that the employers to this case have not set apart the amounts of the contribution of their employees, nor kept or deposited them in a special account, but that, on the other hand, the trustees have permitted the moneys and securities to be utilised by the company for its own purposes. In view of these allegations, when the matter came up before us at the last hearing on 10th February 1961, we had ordered the respondents 1 and 2, who were admittedly trustees of the Provident Fund, to file an affidavit stating whether the amount of the provident fund of its employees has been set apart in a separate account or not and whether it was separately invested or not and if invested in what securities. We had also asked them to furnish a statement showing the date from which the provident fund amount had been kept apart and/or invested. While, no doubt, Mr. Amin had contended at the hearing that he was not in a position to state whether an affidavit would be filed or not, Mr. Shellim Samuel has stated before us today that in spite of an intimation to respondents Nos.1 and 2, they do not intend to file such an affidavit. The refusal on the part of the respondents Nos.1 and 2 to place the facts before the Court undoubtedly indicates that in all probability they have not complied with the provisions of section 417(1) and (2) and that that is the reason why a clear affidavit could not be filed by them.
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SUDRU Vs. THE STATE OF CHHATTISGARH | punishable under section 302 of the IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs.500/- and in default of payment of fine to further undergo R.I. for one year. Being aggrieved thereby, appeal was filed before the High Court of Chattisgarh at Bilaspur. The High Court dismissed the appeal. Hence, the appellant filed the present appeal in this Court. 3. The learned Counsel for the appellant submitted that, the Trial Court as well as the High Court have erred in convicting the appellant and dismissing the appeal. It is submitted that, the case rests on circumstantial evidence and the prosecution has utterly failed to prove the incriminating circumstances and in any case has failed to establish the chain of incriminating circumstances, which leads to no other conclusion than the guilt of the appellant. It is further submitted that, the star witness Janki Bai has turned hostile and as such there is no evidence to sustain order of conviction. 4. No doubt, in the present case all the witnesses who are related to the accused and the deceased have turned hostile. PW-1 Janki Bai, wife of the appellant and the mother of the deceased has also turned hostile. However, by now it is settled principle of law, that such part of the evidence of a hostile witness which is found to be credible could be taken into consideration and it is not necessary to discard the entire evidence. Reference in this respect could be made to the judgment of this Court in the case of Bhajju v. State of M.P., (2012) 4 SCC 327 , which reads thus: ?36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act enables the court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party.? 5. From the evidence of PW-1 Janki Bai it would reveal, that insofar as that part of the evidence wherein, she has stated that there was a quarrel between her husband and her, she left the room with the other two children and the deceased and the appellant were alone in the room and that when she reached the house in the morning, she saw her son Ajit covered with the blanket and after opening the said blanket seeing Ajit to be dead is concerned, the same has remain unshattered. It could thus be seen that, from the evidence of PW1 Janki Bai, it can be safely held that there was a quarrel between PW-1 Janki Bai and appellant and after the quarrel, she went to the house of her brother-in-law with two younger children and that the deceased was left alone in the company of appellant and on the next day morning the deceased was found to be dead. 6. In this view of the matter, after the prosecution has established the aforesaid fact, the burden would shift upon the appellant under Section 106 of the Indian Evidence Act. Once the prosecution proves, that it is the deceased and the appellant, who were alone in that room and on the next day morning the dead body of the deceased was found, the onus shifts on the appellant to explain, as to what has happened in that night and as to how the death of the deceased has occurred. 7. In this respect reference can be made to the following observation of this Court in the case of Trimukh Maroti Kirkan versus State of Maharashtra, reported in (2006) 10 SCC 681 : ?In a case based on circumstantial evidence where no eye-witness account is available there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.? 8. The appellant has utterly failed to discharge such burden. The appellant has taken defence in his statement under Section 313 of Cr.P.C., that the deceased has died due to ailment. However, this is falsified by the medical evidence of PW-2 Dr. B.K. Tirki. In his evidence he has stated that, there was a fracture on the head of the deceased and the death of the deceased might have occurred due to strangulation. There were marks of fingers on the neck of the deceased. No doubt, that non- explanation or false explanation by appellant cannot be taken as a circumstance to complete the chain of circumstances to establish the guilt of the appellant. However, the false explanation can always be taken into consideration to fortify the finding of guilt already recorded on the basis of other circumstances. 9. In this respect apart from referring to the observations of this Court in the case of Trimukh Maroti Kirkan (supra), it will be apposite to refer to the following observation of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , which reads thus: ?151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court.? | 0[ds]4. No doubt, in the present case all the witnesses who are related to the accused and the deceased have turned hostile. PW-1 Janki Bai, wife of the appellant and the mother of the deceased has also turned hostile. However, by now it is settled principle of law, that such part of the evidence of a hostile witness which is found to be credible could be taken into consideration and it is not necessary to discard the entirecould thus be seen that, from the evidence of PW1 Janki Bai, it can be safely held that there was a quarrel between PW-1 Janki Bai and appellant and after the quarrel, she went to the house of her brother-in-law with two younger children and that the deceased was left alone in the company of appellant and on the next day morning the deceased was found to be dead.The appellant has utterly failed to discharge such burden. The appellant has taken defence in his statement under Section 313 of Cr.P.C., that the deceased has died due to ailment. However, this is falsified by the medical evidence of PW-2 Dr. B.K. Tirki. In his evidence he has stated that, there was a fracture on the head of the deceased and the death of the deceased might have occurred due to strangulation. There were marks of fingers on the neck of the deceased. No doubt, that non- explanation or false explanation by appellant cannot be taken as a circumstance to complete the chain of circumstances to establish the guilt of the appellant. However, the false explanation can always be taken into consideration to fortify the finding of guilt already recorded on the basis of other circumstances. | 0 | 1,444 | 309 | ### Instruction:
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punishable under section 302 of the IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs.500/- and in default of payment of fine to further undergo R.I. for one year. Being aggrieved thereby, appeal was filed before the High Court of Chattisgarh at Bilaspur. The High Court dismissed the appeal. Hence, the appellant filed the present appeal in this Court. 3. The learned Counsel for the appellant submitted that, the Trial Court as well as the High Court have erred in convicting the appellant and dismissing the appeal. It is submitted that, the case rests on circumstantial evidence and the prosecution has utterly failed to prove the incriminating circumstances and in any case has failed to establish the chain of incriminating circumstances, which leads to no other conclusion than the guilt of the appellant. It is further submitted that, the star witness Janki Bai has turned hostile and as such there is no evidence to sustain order of conviction. 4. No doubt, in the present case all the witnesses who are related to the accused and the deceased have turned hostile. PW-1 Janki Bai, wife of the appellant and the mother of the deceased has also turned hostile. However, by now it is settled principle of law, that such part of the evidence of a hostile witness which is found to be credible could be taken into consideration and it is not necessary to discard the entire evidence. Reference in this respect could be made to the judgment of this Court in the case of Bhajju v. State of M.P., (2012) 4 SCC 327 , which reads thus: ?36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act enables the court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party.? 5. From the evidence of PW-1 Janki Bai it would reveal, that insofar as that part of the evidence wherein, she has stated that there was a quarrel between her husband and her, she left the room with the other two children and the deceased and the appellant were alone in the room and that when she reached the house in the morning, she saw her son Ajit covered with the blanket and after opening the said blanket seeing Ajit to be dead is concerned, the same has remain unshattered. It could thus be seen that, from the evidence of PW1 Janki Bai, it can be safely held that there was a quarrel between PW-1 Janki Bai and appellant and after the quarrel, she went to the house of her brother-in-law with two younger children and that the deceased was left alone in the company of appellant and on the next day morning the deceased was found to be dead. 6. In this view of the matter, after the prosecution has established the aforesaid fact, the burden would shift upon the appellant under Section 106 of the Indian Evidence Act. Once the prosecution proves, that it is the deceased and the appellant, who were alone in that room and on the next day morning the dead body of the deceased was found, the onus shifts on the appellant to explain, as to what has happened in that night and as to how the death of the deceased has occurred. 7. In this respect reference can be made to the following observation of this Court in the case of Trimukh Maroti Kirkan versus State of Maharashtra, reported in (2006) 10 SCC 681 : ?In a case based on circumstantial evidence where no eye-witness account is available there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.? 8. The appellant has utterly failed to discharge such burden. The appellant has taken defence in his statement under Section 313 of Cr.P.C., that the deceased has died due to ailment. However, this is falsified by the medical evidence of PW-2 Dr. B.K. Tirki. In his evidence he has stated that, there was a fracture on the head of the deceased and the death of the deceased might have occurred due to strangulation. There were marks of fingers on the neck of the deceased. No doubt, that non- explanation or false explanation by appellant cannot be taken as a circumstance to complete the chain of circumstances to establish the guilt of the appellant. However, the false explanation can always be taken into consideration to fortify the finding of guilt already recorded on the basis of other circumstances. 9. In this respect apart from referring to the observations of this Court in the case of Trimukh Maroti Kirkan (supra), it will be apposite to refer to the following observation of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , which reads thus: ?151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court.?
### Response:
0
### Explanation:
4. No doubt, in the present case all the witnesses who are related to the accused and the deceased have turned hostile. PW-1 Janki Bai, wife of the appellant and the mother of the deceased has also turned hostile. However, by now it is settled principle of law, that such part of the evidence of a hostile witness which is found to be credible could be taken into consideration and it is not necessary to discard the entirecould thus be seen that, from the evidence of PW1 Janki Bai, it can be safely held that there was a quarrel between PW-1 Janki Bai and appellant and after the quarrel, she went to the house of her brother-in-law with two younger children and that the deceased was left alone in the company of appellant and on the next day morning the deceased was found to be dead.The appellant has utterly failed to discharge such burden. The appellant has taken defence in his statement under Section 313 of Cr.P.C., that the deceased has died due to ailment. However, this is falsified by the medical evidence of PW-2 Dr. B.K. Tirki. In his evidence he has stated that, there was a fracture on the head of the deceased and the death of the deceased might have occurred due to strangulation. There were marks of fingers on the neck of the deceased. No doubt, that non- explanation or false explanation by appellant cannot be taken as a circumstance to complete the chain of circumstances to establish the guilt of the appellant. However, the false explanation can always be taken into consideration to fortify the finding of guilt already recorded on the basis of other circumstances.
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Gramophone Company Of India Ltd Vs. Birendra Bahadur Pandey & Ors | to be imported into the country only if there is an incorporation or mixing up of the goods imported with the mass of the property in the local area. In other words the High Court realized on the original package doctrine as enunciate by the American Court. Reliance was placed by the High Court upon the decision of this court in the Central India Spinning and Weaving &Manufacturing Co. Ltd; The Empress Mills, Nagpur v. The Municipal Committee, Wardha [1958] SCR 1102 ). That was a case which arose under the C.P. and Berar Municipalities Act and the question was whether the power to impose a terminal tax on goods or animals imported into or exported from the limits of a municipality" included the right to levy tax on goods which were neither loaded or unloaded at Wardha but were merely carried across through the municipal area. This court said that it did not. The word import it was thought meant not merely the bringing into but camprised something more, that is incorporating and mixing up of the goods with the mass of the property in the local area, thus accepting the enunciation of the Original Package Doctrine by Chief Justice Marshall in Brown v. State of Maryland 6 L.Ed. 78. Another reason given by the learned Judges to arrive at the conclusion that they did, was that the very levy was a terminal tax and, therefore, the words import and export, in the given context, had something to do with the idea of a terminus and not an intermediate Stage of a journey. We are afraid the case is really not of any guidance to us since in the context of a terminal tax the words imported and exported could be construed in no other manner than was done by the Court. We must however say that the original package doctrine as enunciated by Chief Justice Marshall on which reliance was placed was expressly disapproved first by the Federal Court in the Province of Madras v. Buddu Paidama, [1942] FCR 90 and again by the Supreme Court in State of Bombay v. F.N. Balsara, [1951] SCR 682. Apparently , these decisions were not brought to the notice of the court which decided the case of Central India Spinning and Weaving and Manufacturing Co. Ltd. The Empress Mills Nagpur Municipal Committee, Wardha. So we derive no help from this case. As w e said, we prefer to interpret the words import as it is found in the Copyright Act rather than research for its meaning by referring to other than research statutes where it has been used.The learned counsel for the appellant invited ou r attention to Radhakishan v. Union of India: [1965] 2 S.C.R. 213, Shawhney v. Sylvania and Laxman, 77 Bom. LR. 380, Bernado v. Collector of Customs A.I.R. 1960 Kerala 170, to urge that importation was complete so soon as the Customs barrier was crossed. They are cases under the Customs Act and it is needless for us to seek aid from there when there is enough direct light under the Copyright Act and the various conventions and treaties which have with the subject Copyright from different angles. We do not also desire to crow our judgment with reference to the history of the Copyright and the Customs legislations in the United Kingdom and India as we do not think it necessary to do so in this case. 14. We have, therefore, no hesitation in coming to the conclusion that the word import in Secs. 51 and 53 of the Copyright Act means bringing into India from outside India, that it is not limited to importation for commerce only but includes importation for transit across the country. Our interpretation, far from being inconsistent with any principle of International law, is entirely in accord with International Conventions and the Treaties between India and Nepal. And, that we think is as it should be. 15. We have said that an order under Sec. 53 may be made by the Registrar of Copyrights on the application of the owner of the Copyright, but after making such enquiry as the Registrar deems fit. On the order being made the offending copies are deemed to be goods whose import has been prohibited or restricted under Sec. 11 of the Customs Act. There upon the relevant provisions of the Customs Act are to apply, with the difference that confiscated copies shall not vest in the Government, but shall be delivered to the owner of the Copyright. One fundamental difference between the nature of a Notification under Sec. 11 of the Customs Act and an order made under Sec. 53 of the Copyright Act is that the former is quasi-legislative in character, while the latter is quasi-judicial in character. The quasi-judicial nature of the order made under Sec. 53 is further emphasised by the fact that an appeal is provided to the Copyright Board against the order of the Registrar under Sec.72 of the Copyright Act. We mention the character of the order under Sec. 53 to indicate that the effect of an order under of the Copyright Act is not as portentous as a notification under Sec. 11 of the Customs Act. The Registrar is nor bound to make an order under Sec. 53 of the Copyright Act so soon as an application is presented to him by the owner of the Copyright. He has naturally to consider the context of the mischief sought to be prevented. He must consider whether the copies would infringe the Copyright if the copies were made in India. He must consider whether the applicant owns the Copyright or is the duly authorised agent of the Copyright. He must hear these claiming to be affected if an order is made and consider any contention that may be put forward as an excuse for the import. He may consider any other relevant circumstance. Since all legitimate defences are open and the enquiry is quasi-judicial, no one can seriously complain. | 1[ds]It is difficult to agree with this submission thought it did find favour with the Division Bench of the Calcutta High Court, in the judgment under appeal. In the first place, the language of Sec. 53 does not justify reading the words imported for commerce for the words imported. Nor is t here any reason to assume that such was the object of the legislature. We have already mentioned the imported attached by International opinion, as manifested by the various International Conventions and Treaties, to the protection of Copyright and the gravity with which traffic in industrial, literary or artistic property is viewed, treating such traffic on par with traffic in narcotics, dangerous drugs and arms. In interpreting the word import in the Copyright Act, we must take note that while positive requirement of the Copyright Conventions is to protect copyright, negatively also, the Transit Trade Convention and the bilateral Treaty make exceptions enabling the Transit State to take measure to protect Copyright. If this much is borne in mind, it becomes bear that the word import in Sec. 53 of the Copyright Act cannot bear the narrow interpretation sought to be placed upon it to limit it to import for commerce. It must be interpreted in a sense which will fit the Copyright Act into the setting of the International Conventions.The Calcutta High Court thought that goods may be said to be imported into the country only if there is an incorporation or mixing up of the goods imported with the mass of the property in the local area. In other words the High Court realized on the original package doctrine as enunciate by the American Court. Reliance was placed by the High Court upon the decision of this court in the Central India Spinning and Weaving &Manufacturing Co. Ltd; The Empress Mills, Nagpur v. The Municipal Committee, Wardha [1958] SCR 1102 ). That was a case which arose under the C.P. and Berar Municipalities Act and the question was whether the power to impose a terminal tax on goods or animals imported into or exported from the limits of a municipality" included the right to levy tax on goods which were neither loaded or unloaded at Wardha but were merely carried across through the municipal area. This court said that it did not. The word import it was thought meant not merely the bringing into but camprised something more, that is incorporating and mixing up of the goods with the mass of the property in the local area, thus accepting the enunciation of the Original Package Doctrine by Chief Justice Marshall in Brown v. State of Maryland 6 L.Ed. 78. Another reason given by the learned Judges to arrive at the conclusion that they did, was that the very levy was a terminal tax and, therefore, the words import and export, in the given context, had something to do with the idea of a terminus and not an intermediate Stage of a journey. We are afraid the case is really not of any guidance to us since in the context of a terminal tax the words imported and exported could be construed in no other manner than was done by the Court. We must however say that the original package doctrine as enunciated by Chief Justice Marshall on which reliance was placed was expressly disapproved first by the Federal Court in the Province of Madras v. Buddu Paidama, [1942] FCR 90 and again by the Supreme Court in State of Bombay v. F.N. Balsara, [1951] SCR 682. Apparently , these decisions were not brought to the notice of the court which decided the case of Central India Spinning and Weaving and Manufacturing Co. Ltd. The Empress Mills Nagpur Municipal Committee, Wardha. So we derive no help from this case. As w e said, we prefer to interpret the words import as it is found in the Copyright Act rather than research for its meaning by referring to other than research statutes where it has been used.The learned counsel for the appellant invited ou r attention to Radhakishan v. Union of India: [1965] 2 S.C.R. 213, Shawhney v. Sylvania and Laxman, 77 Bom. LR. 380, Bernado v. Collector of Customs A.I.R. 1960 Kerala 170, to urge that importation was complete so soon as the Customs barrier was crossed. They are cases under the Customs Act and it is needless for us to seek aid from there when there is enough direct light under the Copyright Act and the various conventions and treaties which have with the subject Copyright from different angles. We do not also desire to crow our judgment with reference to the history of the Copyright and the Customs legislations in the United Kingdom and India as we do not think it necessary to do so in this caseWe have, therefore, no hesitation in coming to the conclusion that the word import in Secs. 51 and 53 of the Copyright Act means bringing into India from outside India, that it is not limited to importation for commerce only but includes importation for transit across the country. Our interpretation, far from being inconsistent with any principle of International law, is entirely in accord with International Conventions and the Treaties between India and Nepal. And, that we think is as it should be. | 1 | 9,744 | 968 | ### 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:
to be imported into the country only if there is an incorporation or mixing up of the goods imported with the mass of the property in the local area. In other words the High Court realized on the original package doctrine as enunciate by the American Court. Reliance was placed by the High Court upon the decision of this court in the Central India Spinning and Weaving &Manufacturing Co. Ltd; The Empress Mills, Nagpur v. The Municipal Committee, Wardha [1958] SCR 1102 ). That was a case which arose under the C.P. and Berar Municipalities Act and the question was whether the power to impose a terminal tax on goods or animals imported into or exported from the limits of a municipality" included the right to levy tax on goods which were neither loaded or unloaded at Wardha but were merely carried across through the municipal area. This court said that it did not. The word import it was thought meant not merely the bringing into but camprised something more, that is incorporating and mixing up of the goods with the mass of the property in the local area, thus accepting the enunciation of the Original Package Doctrine by Chief Justice Marshall in Brown v. State of Maryland 6 L.Ed. 78. Another reason given by the learned Judges to arrive at the conclusion that they did, was that the very levy was a terminal tax and, therefore, the words import and export, in the given context, had something to do with the idea of a terminus and not an intermediate Stage of a journey. We are afraid the case is really not of any guidance to us since in the context of a terminal tax the words imported and exported could be construed in no other manner than was done by the Court. We must however say that the original package doctrine as enunciated by Chief Justice Marshall on which reliance was placed was expressly disapproved first by the Federal Court in the Province of Madras v. Buddu Paidama, [1942] FCR 90 and again by the Supreme Court in State of Bombay v. F.N. Balsara, [1951] SCR 682. Apparently , these decisions were not brought to the notice of the court which decided the case of Central India Spinning and Weaving and Manufacturing Co. Ltd. The Empress Mills Nagpur Municipal Committee, Wardha. So we derive no help from this case. As w e said, we prefer to interpret the words import as it is found in the Copyright Act rather than research for its meaning by referring to other than research statutes where it has been used.The learned counsel for the appellant invited ou r attention to Radhakishan v. Union of India: [1965] 2 S.C.R. 213, Shawhney v. Sylvania and Laxman, 77 Bom. LR. 380, Bernado v. Collector of Customs A.I.R. 1960 Kerala 170, to urge that importation was complete so soon as the Customs barrier was crossed. They are cases under the Customs Act and it is needless for us to seek aid from there when there is enough direct light under the Copyright Act and the various conventions and treaties which have with the subject Copyright from different angles. We do not also desire to crow our judgment with reference to the history of the Copyright and the Customs legislations in the United Kingdom and India as we do not think it necessary to do so in this case. 14. We have, therefore, no hesitation in coming to the conclusion that the word import in Secs. 51 and 53 of the Copyright Act means bringing into India from outside India, that it is not limited to importation for commerce only but includes importation for transit across the country. Our interpretation, far from being inconsistent with any principle of International law, is entirely in accord with International Conventions and the Treaties between India and Nepal. And, that we think is as it should be. 15. We have said that an order under Sec. 53 may be made by the Registrar of Copyrights on the application of the owner of the Copyright, but after making such enquiry as the Registrar deems fit. On the order being made the offending copies are deemed to be goods whose import has been prohibited or restricted under Sec. 11 of the Customs Act. There upon the relevant provisions of the Customs Act are to apply, with the difference that confiscated copies shall not vest in the Government, but shall be delivered to the owner of the Copyright. One fundamental difference between the nature of a Notification under Sec. 11 of the Customs Act and an order made under Sec. 53 of the Copyright Act is that the former is quasi-legislative in character, while the latter is quasi-judicial in character. The quasi-judicial nature of the order made under Sec. 53 is further emphasised by the fact that an appeal is provided to the Copyright Board against the order of the Registrar under Sec.72 of the Copyright Act. We mention the character of the order under Sec. 53 to indicate that the effect of an order under of the Copyright Act is not as portentous as a notification under Sec. 11 of the Customs Act. The Registrar is nor bound to make an order under Sec. 53 of the Copyright Act so soon as an application is presented to him by the owner of the Copyright. He has naturally to consider the context of the mischief sought to be prevented. He must consider whether the copies would infringe the Copyright if the copies were made in India. He must consider whether the applicant owns the Copyright or is the duly authorised agent of the Copyright. He must hear these claiming to be affected if an order is made and consider any contention that may be put forward as an excuse for the import. He may consider any other relevant circumstance. Since all legitimate defences are open and the enquiry is quasi-judicial, no one can seriously complain.
### Response:
1
### Explanation:
It is difficult to agree with this submission thought it did find favour with the Division Bench of the Calcutta High Court, in the judgment under appeal. In the first place, the language of Sec. 53 does not justify reading the words imported for commerce for the words imported. Nor is t here any reason to assume that such was the object of the legislature. We have already mentioned the imported attached by International opinion, as manifested by the various International Conventions and Treaties, to the protection of Copyright and the gravity with which traffic in industrial, literary or artistic property is viewed, treating such traffic on par with traffic in narcotics, dangerous drugs and arms. In interpreting the word import in the Copyright Act, we must take note that while positive requirement of the Copyright Conventions is to protect copyright, negatively also, the Transit Trade Convention and the bilateral Treaty make exceptions enabling the Transit State to take measure to protect Copyright. If this much is borne in mind, it becomes bear that the word import in Sec. 53 of the Copyright Act cannot bear the narrow interpretation sought to be placed upon it to limit it to import for commerce. It must be interpreted in a sense which will fit the Copyright Act into the setting of the International Conventions.The Calcutta High Court thought that goods may be said to be imported into the country only if there is an incorporation or mixing up of the goods imported with the mass of the property in the local area. In other words the High Court realized on the original package doctrine as enunciate by the American Court. Reliance was placed by the High Court upon the decision of this court in the Central India Spinning and Weaving &Manufacturing Co. Ltd; The Empress Mills, Nagpur v. The Municipal Committee, Wardha [1958] SCR 1102 ). That was a case which arose under the C.P. and Berar Municipalities Act and the question was whether the power to impose a terminal tax on goods or animals imported into or exported from the limits of a municipality" included the right to levy tax on goods which were neither loaded or unloaded at Wardha but were merely carried across through the municipal area. This court said that it did not. The word import it was thought meant not merely the bringing into but camprised something more, that is incorporating and mixing up of the goods with the mass of the property in the local area, thus accepting the enunciation of the Original Package Doctrine by Chief Justice Marshall in Brown v. State of Maryland 6 L.Ed. 78. Another reason given by the learned Judges to arrive at the conclusion that they did, was that the very levy was a terminal tax and, therefore, the words import and export, in the given context, had something to do with the idea of a terminus and not an intermediate Stage of a journey. We are afraid the case is really not of any guidance to us since in the context of a terminal tax the words imported and exported could be construed in no other manner than was done by the Court. We must however say that the original package doctrine as enunciated by Chief Justice Marshall on which reliance was placed was expressly disapproved first by the Federal Court in the Province of Madras v. Buddu Paidama, [1942] FCR 90 and again by the Supreme Court in State of Bombay v. F.N. Balsara, [1951] SCR 682. Apparently , these decisions were not brought to the notice of the court which decided the case of Central India Spinning and Weaving and Manufacturing Co. Ltd. The Empress Mills Nagpur Municipal Committee, Wardha. So we derive no help from this case. As w e said, we prefer to interpret the words import as it is found in the Copyright Act rather than research for its meaning by referring to other than research statutes where it has been used.The learned counsel for the appellant invited ou r attention to Radhakishan v. Union of India: [1965] 2 S.C.R. 213, Shawhney v. Sylvania and Laxman, 77 Bom. LR. 380, Bernado v. Collector of Customs A.I.R. 1960 Kerala 170, to urge that importation was complete so soon as the Customs barrier was crossed. They are cases under the Customs Act and it is needless for us to seek aid from there when there is enough direct light under the Copyright Act and the various conventions and treaties which have with the subject Copyright from different angles. We do not also desire to crow our judgment with reference to the history of the Copyright and the Customs legislations in the United Kingdom and India as we do not think it necessary to do so in this caseWe have, therefore, no hesitation in coming to the conclusion that the word import in Secs. 51 and 53 of the Copyright Act means bringing into India from outside India, that it is not limited to importation for commerce only but includes importation for transit across the country. Our interpretation, far from being inconsistent with any principle of International law, is entirely in accord with International Conventions and the Treaties between India and Nepal. And, that we think is as it should be.
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